The legal profession has a central role in the administration of justice and the maintenance of the rule of law. The freedom of lawyers to practise their profession without undue hindrance is an essential component of a democratic society and a necessary prerequisite for the effective enforcement of the provisions of the Convention, in particular the guarantees of fair trial and the right to personal security. Persecution or harassment of members of the legal profession thus strikes at the very heart of the Convention system. For this reason, allegations of such persecution in whatever form, but particularly large scale arrests and detention of lawyers and searching of lawyers’ offices, will be subject to especially strict scrutiny by the Court.
EUROPEAN COURT OF HUMAN RIGHTS
CASE OF ELCI AND OTHERS v. TURKEY
(Applications nos. 23145/93 and 25091/94)
13 November 2003
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Elci and Others v. Turkey,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
SirNicolas Bratza, President,
MrL. Garlicki, judges,
MrF. Gölcüklü, ad hoc judge,
and Mr M. O'BOYLE, Section Registrar,
Having deliberated in private on 21October 2003,
Delivers the following judgment, which was adopted on that date:
1. The case originated in two applications (nos. 23145/93 and 25091/94) against Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by several Turkish nationals: Tahir Elçi, Nevzat Kaya, Şinasi Tur, Sabahattin Acar, Niyazi Çem, Mehmet Selim Kurbanoğlu, Meral Daniş Beştaş, Mesut Beştaş, Vedat Erten, Baki Demırhan, Arif Altinkalem, Gazanfer Abbasioğlu, Fuat Hayri Demır, Hüsniye Ölmez, İmam Şahin and Arzu Şahin (“the applicants”), on 21 December 1993 and 28 April 1994, respectively. The applications were joined on 9 September 1994.
2. The applicants were represented by Professor Kevin Boyle and Professor Françoise Hampson, succeeded by MM Timothy Otty and Philip Leach, lawyers practising in the United Kingdom, assisted by Mmes Alice Faure Walker and Anke Stock. The applicants also had the assistance of MM Mustafa Sezgin Tanrıkulu, Osman Baydemir and Mehmet Emin Aktar, three Turkish lawyers. The Turkish Government (“the Government”) were represented by various Agents, in particular MM. Aslan Gündüz, Şükrü Alpaslan and Münci Özmen.
3. The applicants, who are all Turkish lawyers, alleged that in November and December 1993 they were taken into detention by law enforcement officers on the pretext of involvement in criminal activities, but in reality because they had represented clients before the State Security Court and been involved in human rights work. They all claimed that their detention was unlawful (Article 5 of the Convention). Some of the applicants - Tahir Elçi, Şinasi Tur, Sabahattin Acar, Niyazi Çem, Mehmet Selim Kurbanoğlu, Meral Daniş Beştaş, Mesut Beştaş, Vedat Erten, and Hüsniye Ölmez - also claimed that they were tortured and otherwise ill-treated whilst in detention (Article 3). The applicants Tahir Elçi, Şinasi Tur, Sabahattin Acar, Niyazi Çem and Mehmet Selim Kurbanoğlu made further complaints concerning the searches and seizures which took place at the time of the arrests (Article 8 of the Convention and Article 1 of Protocol No. 1). A further aspect of the case related to an alleged hindrance of the rights of Tahir Elçi, İmam Şahin, Arzu Şahin, Sabahattin Acar and Baki Demırhan to make complaints to the Convention organs (formerly Article 25 of the Convention, now Article 34).
4. The applications were declared partly admissible (in respect of the complaints specified in the previous paragraph) after a hearing on admissibility and merits by the Commission in Strasbourg on 2 December 1996. (The decision in Şahin and Şahin was partly re-opened and confirmed by the Commission on 30 June 1997.) Delegates of the Commission (Mr H. Danelius, Ms J. Liddy and Mr A. Arabadjiev) thereafter took the parties' oral evidence at a fact-finding hearing in Ankara between 7 and 11 December 1998.
5. The applicants and the Government each filed final conclusions on the merits (Rule 59 § 1), the former on 30 September 1999 and the latter on 10 November 1999.
6. The case was transmitted to the Court on 1 November 1999 in accordance with Article 5 § 3, second sentence, of Protocol No. 11 to the Convention, the Commission not having completed its examination of the merits of the applications by that date.
7. The applications were allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court. Mr R. Türmen, the judge elected in respect of Turkey, withdrew from sitting in the case (Rule 28). The Government accordingly appointed Mr F. Gölcüklü to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1).
8. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Fourth Section.
9. The applicants submitted claims for just satisfaction dated 28 March 2003, to which the Government responded on 30 June 2003.
I. THE CIRCUMSTANCES OF THE CASE
10. The case concerns events in November and December 1993 when the applicants were taken into custody for questioning about their alleged links with the PKK (the Kurdish Workers' Party).
11. The facts being disputed by the parties, the Commission appointed Delegates who took evidence in Ankara from 7 to 11 December 1998. They heard all the applicants (except for Hüsniye Ölmez) as witnesses, as well as Abdülhakim Güven, Fatma Demırel, Lokman Eğilmez, Eşref Hatipoğlu, Mahmut Demırel, Hasan Bozoğlu, Mithat Gül, Burhanettin Kiyak, Fırat Yavuz Yedekçi, Ünal Haney, Batuhan Özer, Murat Kirikçi, Hüsein Gazi Ateş, Ercüment Dönmez, Ali Kara, Hasan Şener, Cafer Öngün and Mehmet Durmaş.
12. The transcripts of the oral evidence, together with the documentary evidence provided by the parties to the Commission, have been transmitted to the Court. The relevant material is summarised below (Sections C and D), as are the original submissions by the parties concerning the facts (Sections A and B).
A. The applicants' original submissions on the facts
1. The case of Tahir Elçi
13. On 23 November 1993 at around 8.30 a.m. two plain-clothed policemen went to the applicant Tahir Elçi's office in Cizre. After being searched, the applicant was taken to the gendarmerie. At 10 a.m. six policemen, including the two who had detained the applicant, returned with him to search his office. They seized all the applicant's note-books, powers of attorney, case files (particularly concerning applications to the Commission - no. 21689/93 Özkan and 31 others v. Turkey, no. 21895/93 Cağirge v. Turkey and no. 20764/92 Ertak v. Turkey). His collection of newspapers (the pro-Kurdish Özgür Gündem, Özgür Halk and Rawson), magazines and books were also seized. The applicant signed a procès-verbal concerning his provisional detention. At 11 a.m. the policemen took the applicant to his home, where they made a search but did not seize anything. He was kept at the police station until being handed over to the Cizre gendarmerie command a day or so later.
14. He alleged that he was ill-treated by the Cizre police. He was stripped naked, insulted, threatened and beaten up. His testicles were squeezed and cold water was poured on him. This lasted about an hour. Then they took the applicant to the Cizre district gendarmerie command where he was kept, blindfolded, for a couple of days in a basement. Thereafter he was handed over to the Diyarbakır provincial gendarmerie command.
15. On 25 November 1993 the applicant's brothers were informed by the prosecuting authorities and a captain of the gendarmerie that he had been taken into detention on 24 November.
16. The applicant was detained in Diyarbakır incommunicado until his formal remand in custody on 10 December 1993. He alleged that during this first period of detention he was interrogated under torture concerning and because of applications he had filed on behalf of clients with the Commission. Correspondence and documentation relating to those applications were put to him by his interrogators. He was supposed to confess to having relations with the PKK and being a PKK courier. When he refused he was tortured. The interrogators assaulted and abused him, particularly concerning one of the cases he had taken to the Commission involving events at the Ormaniçi village. He was stripped and left naked. He was threatened with death should he pursue claims of village evacuations and disappearances. At one point he was taken to the countryside in a military vehicle and told that he was to be killed. However, he refused to sign any confession statement, even after being hosed down with cold water (as was Niyazi Çem) and having had his testicles squeezed.
17. In the gendarmerie command he was forced to lie on a concrete floor, blindfolded, being forbidden to speak to others or to stand up. Within a 24 hour period he received a stale slice of bread and was taken to the toilet twice. A request for other needs to be met was an excuse for further torture sessions.
18. He was brought before a Prosecutor on 10 December 1993, where charges based on the allegations of a certain Abdülhakim Güven, a PKK confessor benefiting from the Remorse Law, were put to him. It was incorrectly alleged that an illegal magazine and document had been found in his office. His brother, Ömer, who had also been present during the search and had counter-signed the search report, could confirm this error, as could his other brother, Mehmet, who had also been present during the search (see paragraph 480 below). A false search report (a faxed not an original copy) supplanted the genuine version in the domestic court file.
19. The applicant was remanded in custody by a judge from 10 December 1993 until 17 February 1994, when he was released after a hearing before the State Security Court. Despite repeated requests from his legal representatives, his case files and Commission correspondence were allegedly never returned to him. His legal practice was irreparably damaged by these proceedings, following which he moved to Diyarbakır. (For further details see the summary of his oral evidence, §§ 79-102 below.)
2. The case of İmam Şahin and Arzu Şahin
20. On 7 December 1993 İmam Şahin was taken into custody by policemen from the Anti-Terror Department in İstanbul, when he was about to attend a hearing before the State Security Court. After being held at the Anti-Terror Department for a while, he was taken to his home where a search was carried out, but nothing incriminating was seized. His wife, Arzu Şahin, who was at home, was also taken into custody and they were both blindfolded and placed in a cell in the Security Directorate. They claim that they were not informed of the reasons for their detention.
21. On 11 December 1993 they were handed over to plain-clothed gendarmes from Diyarbakır. Mr Şahin had to pay for the air fares to Diyarbakır of himself, his wife and these officials. On arrival, the couple were detained at the provincial gendarmerie command. Mr Şahin alleged that he was tortured over 14 days, being given a quarter of a loaf of bread (about 200 g.) to eat a day. He did not see his wife during this time, nor was he informed of her fate. Prior to being brought to court, he was interrogated in the middle of the night and, after threats of rape had been made against his wife, he was made to scribble blindfolded on certain papers. He did not know their contents.
22. Arzu Şahin also claimed to have been interrogated under duress. She was detained in similar conditions to those of the other applicants, with a meagre daily ration of bread and minimal access to toilet facilities.
23. On 21 December 1993 Mr and Mrs Şahin were brought before the Investigating Judge who remanded them in custody on the basis of incriminating accusations made against them by the aforementioned Abdülhakim Güven (paragraph 18 above). Mr Şahin said that he neither knew this person nor had had any relations with him. He had not been to several of the prisons cited by Mr Güven in his connection, as a verification of prison visiting records could establish.
24. Throughout this time the applicants had to leave their children with neighbours.
25. In the indictment issued on 22 December 1993, Arzu Şahin was charged, inter alia, with “drawing up documents belittling the Turkish State and faxing them to human rights organisations in European countries”. This was understood to be a reference to Mrs Şahin's role in the preparation of the Özgür Gundem newspaper's application to the Commission, submitted in December 1993 (Özgür Gündem v. Turkey, no. 23144/93, ECHR 2000-III).
26. Mr and Mrs Şahin were released on 17 February 1994 after a hearing before the State Security Court. Mr Şahin claimed that these proceedings wrought irreparable damage on his professional and family life. (For further details see the summary of their oral evidence, §§ 103-122 below.)
3. The case of Nevzat Kaya
27. On the afternoon of 18 November 1993, three armed gendarmes carried out a search of Mr Kaya's office, with his consent, which was described in a report which he signed. He was taken to the Diyarbakır provincial gendarmerie command and was required to hand over his personal effects, which were noted. Nothing incriminating was found. He was then taken for a medical examination before being handed over to the JITEM (the Gendarmerie's Intelligence and Anti-Terror Department).
28. JITEM officers blindfolded the applicant after putting him in a vehicle. The ensuing journey lasted 25 to 30 minutes. In the vehicle he was asked what connections he had with the PKK and was slapped and threatened with death if he did not speak. The applicant denied support for the PKK and acknowledged that some of the clients he was defending professionally, charging fees, were accused of PKK offences. The applicant claimed that he was later taken to an unknown place where his identity was recorded, after which he was taken to a room and ordered to squat on the floor. He heard people screaming and very loud music was played.
29. During the evening of the following day, the applicant was interrogated. He was accused of being the PKK's lawyer and ordered to explain himself. The applicant insisted that he had no relations with the PKK other than in his authorised professional capacity as a defence lawyer. The applicant alleged that he was then ill-treated. He was confronted with Abdülhakim Güven who stated that the applicant had organised the PKK lawyers, which the applicant denied. He had met Mr Güven, a prisoners' representative, when he had visited clients at the Diyarbakır E-type prison.
30. The next day the applicant returned to the interrogation room where the torture was repeated, accompanied by threats to damage his sexual organs. The applicant wrote a statement himself denying any connection with the PKK. All detainees were blindfolded and slept on a concrete floor. Half a loaf of bread and two visits to the toilet were offered per day. On the seventh or eighth day of custody, the applicant and his colleagues decided to carry out a hunger strike, which lasted two and a half days.
31. On the night of 8 December 1993, the detainees were called up one by one and ordered to sign a number of documents, followed by more ill-treatment. The applicant did not sign during the first session. At the second session Fuat Hayri Demir told the applicant that everyone else had signed. He was then forced to sign documents without reading them, so their contents were unknown to him. Because of the bad state of health of his colleagues - MM. Elçi and Çem and Mmes Beştaş and Ölmez - on 9 December 1993, no one was taken to court that day.
32. On 10 December 1993 he was brought to court after a cursory medical examination by a doctor who, apparently being frightened of the gendarmes, did not mention the evidence of torture in his report. After his release, the applicant received treatment for kidney and stomach problems. (For further details see the summary of his oral evidence, §§ 123-132 below.)
4. The case of Şinasi Tur
33. On 15 November 1993 in the evening, the applicant was taken into custody by the police after his house had been searched with his father's consent. A search report stated that nothing incriminating had been found. He protested against his apprehension, as lacking any authority or jurisdiction. (He had been detained on three previous occasions in 1991, 1992 and 1993 in connection with PKK activities; the last occasion led to a conviction and prison sentence, which was the subject of an appeal at the material time.)
34. He was handed over to the Diyarbakır provincial gendarmerie command and interrogated there for 26 days (25 days according to official records). A former PKK member, Abdülhakim Güven, who was a confessor, confronted the applicant and accused him and other practising lawyers of assisting the PKK. The allegations focused on the exchange of notes between different prisons concerning the PKK and organic relations with that organisation. The applicant was forced to sign pre-prepared statements as he was scared. He had not known their contents and, when he was later informed, he repudiated them.
35. The applicant alleged that during his detention he was severely beaten, threatened with execution, insulted, deprived of sleep and food and blindfolded much of the time. He stated that Tahir Elçi, Niyazi Çem and Meral Daniş Beştaş had been tortured with cold water.
36. On 10 December 1993 the applicant was released by a judge who did not take into account the statements made in detention. (For further details see the summary of his oral evidence, §§ 133-145 below.)
5. The case of Sabahattin Acar
37. On 15 November 1993 at about 6.30 p.m., there was a ring at Mr Acar's door bell and he was told to open up for the police. In order to check their credentials, in view of recent police impostors abducting and killing human rights workers in the region, the applicant called the Chief Prosecutor at the State Security Court. His nephew, Burhan Acar, was at the applicant's house, together with a guest. Three hours later, a commissioner arrived from the Diyarbakır provincial gendarmerie command, whom the applicant knew, whereupon the applicant opened his door to about 15 policemen, gendarmes and special team members, who then conducted a thorough, two-hour search of his flat.
38. The applicant was taken from his home by gendarmes, together with some of his books, cassettes and articles concerning work he had completed for the Human Rights Association when he had been a member of its management. He was blindfolded for the journey and taken to the provincial gendarmerie command. He was not informed of the reasons for his apprehension. He was then locked in a dark, damp cell, without any heating, after being given a blanket, although the temperature outside was below 0oC.
39. On the third day of his detention he was taken somewhere for interrogation. The interrogators asked him, in particular, whether he had relations with the PKK, whether he had attended hearings before the State Security Court concerning PKK militants and whether he had prepared reports on human rights. (This was understood to be a reference to his work in the preparation of application no. 22947/93, Nebahat Akkoç v. Turkey, to the Commission [Court judgment of 10 October 2000], as well as his communications with the London based Kurdistan Human Rights Project). Then he was confronted with a PKK confessor, Abdülhakim Güven. When the applicant refused to accept the accusations made against him, he was taken outside and stripped naked. He was threatened with being taken into the hills and killed. He alleged that, during interrogations, he was slapped, kicked and beaten. The applicant finally signed a statement whilst blindfolded as he was ill and scared.
40. During his detention he was taken to the toilet twice a day, at 6 in the morning and evening. It was impossible to use the toilet or get drinking water at other times. He received a slice of stale bread every 24 hours.
41. 26 days later (25 days according to official records), on 10 December 1993, he was brought before a Prosecutor of the State Security Court when he was informed of the contents of the document he had signed. He was accused of many acts which had not been mentioned during the interrogations. He was remanded in custody at the Diyarbakır E-Type Prison. (For further details see the summary of his oral evidence, §§ 146-158 below.)
6. The case of Niyazi Çem
42. In front of the building of the İstanbul State Security Court on 23 November 1993 around midday, Mr Çem was taken into custody by five policemen from the Anti-Terror Department. The relevant report on that date stated that he had been apprehended at the request of the Diyarbakır provincial gendarme command in connection with organisational activities for the PKK, which included acting as a courier. The “house search with consent” report of that date mentioned that the applicant had been detained with the permission of the Chief Public Prosecutor of the State Security Court.
43. Mr Çem was taken to the police station of the Gayrettepe 1 Division. His house was searched, but nothing was seized. His bag was searched and in the evening he was thrown into a cell.
44. On 26 November 1993 he was transferred to the Bursa Osmangazi Detention Centre and returned to the Gayrettepe premises on the evening of the following day. On 28 November 1993 the applicant and a suspect from Bursa were taken by air to Diyarbakır and the premises of the JITEM at the Diyarbakır provincial gendarmerie command.
45. For the first two days Mr Çem was not interrogated. Interrogation began on 1 December 1993 at around 11.30 p.m. Three more blindfolds were wrapped over his eyes. The applicant was accused of having accompanied a certain Riza Altun, a PKK protector, by plane, to İstanbul and of having sent him to join the PKK, of acting as a PKK courier between prisons, of organising PKK relations between İstanbul and Europe, and of having contacts with the political branch of the PKK, as well as with the Özgür Gündem and Özgür Halk newspapers. The applicant denied any relations with the PKK, other than with certain clients whom he had defended before the State Security Court. He was then sworn at, hit and his hair was pulled. Abdülhakim Güven was brought in and accused the applicant of being a prison courier. The applicant replied that Mr Güven was inventing such accusations in order to benefit from the Remorse Law, and he explained his position regarding prison visits to his clients. On one such occasion he had met Mr Güven. The next day he was again interrogated with the same accusations being made, which he continued to deny.
46. The applicant stated that throughout the 18 days of his detention (17 days according to official records), he was beaten, threatened, abused, insulted, forced to listen to loud music and to sleep on a cold, concrete floor, whilst being blindfolded all the time. He was given a half a loaf of bread once and taken to the toilet twice each day. There were blankets on the stone, corridor floor - two for three people. The detainees put one on the floor and covered themselves with the other.
47. He alleged that he was stripped naked, together with Tahir Elçi, and hosed down with pressurised cold water in the toilet on 9 December 1993 as he had refused to sign statements, the contents of which were not disclosed to him. The cold water torture only ceased when he began bashing his own head against the wall as he could not bear it any more. Tahir Elçi, Meral Daniş Beştaş and Hüsniye Ölmez suffered the same treatment. Everyone in the place heard the screams of Hüsniye Ölmez.
48. During the evening of 8 December 1993, the interrogators tried to make him sign a statement they had prepared without allowing him to read it first. As he refused, he was beaten. On 9 December 1993 he was again told to sign the statement and, when he refused, he and Tahir Elçi were taken to the toilet, stripped naked and tortured with cold pressurised water. When he could not take any more, the applicant began hitting his head against the wall. He was then taken out, dressed and placed with his friends. The next day he was brought before a court. (For further details see the summary of his oral evidence, §§ 159-172 below.)
7. The case of Mehmet Selim Kurbanoğlu
49. On 20 November 1993 at 7.20 a.m., the applicant was taken into custody by gendarmes from his home, after it was searched. Nothing was seized. He believed that his arrest was based on the abstract declarations of a PKK confessor, Abdülhakim Güven, whom the applicant had met when visiting clients in prison, and who was seeking to save himself. He also considered his arrest to have been unlawful, as being contrary to the safeguards provided by the Law on Advocates (see paragraphs 584-586 below).
50. He was blindfolded and transported to the Diyarbakır provincial gendarmerie command. He was placed in a crowded, damp corridor near a toilet where he was required to lie on the cold, concrete floor with only a blanket. As everyone was blindfolded, he made voice contact with the other detained lawyers.
51. During the 21 days he was in custody (20 days according to official records), he alleged that he was punched, slapped, kicked, threatened with death and kept constantly blindfolded. He was given nothing to eat apart from half a loaf of bread a day. He was made to sign a fabricated record of the aforementioned search (which falsely indicated that a PKK note had been seized), as well as a statement, which he later repudiated before the Public Prosecutor.
52. On 10 December 1993 he was brought before the Diyarbakır State Security Court, when he was released. On 15 December 1993 he was re-arrested after the Prosecutor's appeal, and remanded in the Diyarbakır E-type prison. (For further details see the summary of his oral evidence, §§ 173-187 below.)
8. The case of Meral Daniş Beştaş
53. Mrs Beştaş and her husband were taken into custody during the early evening of 16 November 1993 when leaving the Diyarbakır State Security Court. They were transported in a car by people who said they were contra-guerillas disguised as officers. During transportation she and her husband were threatened with death. They were taken to what she later learned was the Diyarbakır provincial gendarmerie command. She was kept standing, facing a wall, for a couple of hours and then put in a very cold, dark cell on her own and given a blanket. Half an hour later she was taken to the interrogation room and accused of being a courier for the PKK. She replied that she had visited prisons by reason of her job. She alleged that she was slapped twice and told to strip. As she was removing her jumper, she was ordered to get dressed again. She was advised to confess later or be tortured. She was then returned to her cell. During the evening of the following day, she was interrogated again. She was accused of being the secretary of the Human Rights Association and of working for the PKK. For a whole week she was questioned about her activities for the Association, and particularly about applications against Turkey made to European institutions.
54. Two days before being brought to court, she was taken from her cell in the middle of the night. She was given a pen and told to sign some papers. She refused to do so without reading them first, whereupon she was taken elsewhere and tortured, being stripped naked, subjected to continual insults and hosed down with cold water three times, for at least an hour each time. She was threatened with being tortured in front of her husband. As a result of the cold water treatment and the probable ensuing hypothermia, she contracted pneumonia, of which she had medical evidence.
55. During her 25 days in custody (24 days according to official records), the applicant was allowed to go to the toilet twice daily and was given a piece of bread once a day. Deafening music was played throughout her detention and she heard others screaming.
56. She was released on 10 December 1993. (For further details see the summary of her oral evidence, §§ 188-204 below.)
9. The case of Mesut Beştaş
57. Apart from the death threat, Mr Beştaş recounts similar events to those experienced by his wife concerning their apprehension on 16 November 1993 (paragraph 53 above). At the Diyarbakır provincial gendarmerie command, he was put in a cell and given a single blanket, which was insufficient protection from the cold. He was allowed a slice of bread a day during his detention.
58. He was accused of being a courier for the PKK. The applicant insisted that he was a lawyer who took on all kinds of cases. He claimed that he was frequently taken to the interrogation room, being beaten up on his way there, and being threatened with torture. During his 25 days in custody (24 days according to official records), he was blindfolded and he was forced to listen to very loud music and nationalist songs. He was also forced to sign a statement after threats to sexually abuse his wife were made.
59. The applicant was brought before the State Security Court Prosecutor on 10 December 1993. The questions put to him were based on the false declarations of a former PKK member, Abdülhakim Güven, who had benefited from the Remorse Law. He was released and then re-arrested on 14 December 1993, after the Prosecutor's appeal, and remanded in the Diyarbakır E-type prison. At a hearing before the State Security Court on 17 February 1994, he was released, after being threatened, together with his colleagues, by a gendarme commander. He stated that he had contracted pneumonia because of the cold he had experienced in gendarme custody. (For further details see the summary of his oral evidence, §§ 205-219 below).
10. The case of Vedat Erten
60. On 23 November 1993 when leaving the Diyarbakır State Security Court around midday, Mr Erten was apprehended by gendarmes, who refused to draw up a report on this in the presence of witnesses. An “apprehension and search report” was drafted later, which he alleged was unlawful. He gave all his belongings and documents to a trainee lawyer. The gendarmes took him to the Diyarbakır provincial gendarmerie command where he was questioned about his reasons for taking political cases. The applicant replied that as a lawyer it was his duty to do so, and that not all his cases were political. He claimed that he was made to strip naked, abused, insulted, kicked and slapped. His colleagues - MM. Elçi and Çem and Mmes Beştaş and Ölmez - were stripped naked and doused with cold water. False accusations, which the applicant denied, were made against him by Abdülhakim Güven.
61. On 8 December 1993 he was forced to sign some papers because he was scared. He was unaware of their contents as he was blindfolded. The conditions of detentions were inhuman: a slice of bread once and brief toilet visits twice a day. Moreover, he and the other detainees were crowded together in a wet corridor.
62. When he was brought to court on 10 December 1993, he learned of the statements made against him by Abdülhakim Güven. The Prosecutor alleged that he had been apprehended in possession of an incriminating PKK document. The applicant replied that this was impossible and illogical. He claimed to have been “framed”, for he knew of the wave of arrests of his colleagues at that time and the rumours about Abdülhakim Güven. So he would have had to have been out of his mind to carry such papers around with him.
63. The applicant was released then re-arrested a few days later on an arrest warrant dated 14 December 1993, following the Prosecutor's appeal. He was remanded in custody in the Diyarbakır E-type prison. He was again released on 17 February 1994 by the State Security Court. (For further details see the summary of his oral evidence, §§ 220-234 below.)
11. The case of Baki Demırhan
64. On 16 November 1993 the applicant was taken into custody when he was leaving the Diyarbakır State Security Court. He was transported to the Diyarbakır provincial gendarmerie command. In general he was made aware by his interrogators that the PKK confessor, Abdülhakim Güven, had alleged that he was in league with PKK prisoners, had acted as a courier for them, and had smuggled unlawful materials into prisons, e.g. a flick knife. The applicant denied the allegations.
65. The applicant's brother had been detained in the same prison as Mr Güven. Mr Güven also attended all interviews with clients. The applicant was confronted, whilst blindfolded, with Mr Güven. He signed certain statements, the contents of which he did not know, because of the psychological pressure brought to bear on him. He was released on 10 December 1993. (For further details see the summary of his oral evidence, §§ 235-239 below.)
12. The case of Arif Altinkalem
66. On 16 November 1993 the applicant was taken into custody by gendarmes after leaving the Diyarbakır State Security Court around 4.30 p.m., together with Meral Daniş Beştaş, Mesut Beştaş and Baki Demirhan. He was transported to the Diyarbakır provincial gendarmerie command. When he was interrogated, he was questioned about the cases he had defended before the State Security Court. He was accused of assisting PKK detainees by acting as a courier and not charging fees for his work. He was told that the PKK confessor, Abdülhakim Güven, had made certain allegations about him and other local lawyers. The applicant denied these allegations. He signed various statements, the contents of which he did not know, under physical and psychological duress. He was released on 10 December 1993. (For further details see the summary of his oral evidence, §§ 240-248 below.)
13. The case of Gazanfer Abbasioğlu
67. On 30 November 1993 the applicant was arrested at another lawyer's office. After the official search report noted that nothing incriminating had been found, he was taken into custody by gendarmes. He was transported to the Diyarbakır provincial gendarmerie command. He was accused of being a member of and assisting the PKK, and of constantly defending PKK cases. He denied the allegations. The applicant signed certain documents under duress in order to avoid being tortured. He did not know their contents at that point as he had been blindfolded. He was released on 10 December 1993. (For further details see the summary of his oral evidence, §§ 249-255 below.)
14. The case of Fuat Hayri Demır
68. On 3 December 1993 the applicant was arrested by gendarmes from the Diyarbakır provincial gendarmerie command as he was leaving the State Security Court around 12.30 p.m. One or two days later he was taken for interrogation and accused of being a courier for the PKK between prisons, and of assisting and harbouring the PKK. Someone calling himself Mr Güven was apparently present and urged the applicant to confess like him. He denied these allegations. Under threat of torture, he signed certain documents, the contents of which were unknown to him, as he was blindfolded. He was released on 10 December 1993. (For further details see the summary of his oral evidence and the summaries of his statements, §§ 262-278 and 424-442 below.)
15. The case of Hüsniye Ölmez
69. On 16 November 1993 the applicant was apprehended by gendarmes from the Diyarbakır provincial gendarmerie command. She alleged that she was made to strip naked and tortured with beatings and cold water dousing during her detention. She was constantly threatened and forced to sign some papers, the contents of which she did not see as she was blindfolded, with her hand being held. She was remanded in custody on 10 December 1993 and released by the State Security Court on 17 February 1994. (Ms Ölmez did not appear before the Commission Delegates, but further details were given by some of her colleagues; see the summary of the evidence - §§ 31, 47 and 60 above and §§ 96, 141, 153, 166, 197, 228, 254 below; see also §§ 287, 505-506, 521, 539 and 548 below).
B. The Government's original submissions on the facts
70. Following incriminating statements made by Abdülhakim Güven, who was on trial for his active membership of the PKK terrorist organisation, an investigation was instigated against the applicants. He alleged that the applicants had aided and abetted the organisation in various ways. (For further details see the summary of his statements to the gendarmerie and the Diyarbakır State Security Court below, §§ 424-442.)
71. The periods of custody with the gendarmerie or police and the periods of detention on remand after a judicial decision in relation to the applicants were as follows:
Periods of detention in the custody of gendarmes / police
Periods of detention ordered by a judge
23.11.93 - 10.12.93
10.12.93 - 17.02.94
07.12.93 - 21.12.93
21.12.93 - 17.02.94
07.12.93 - 21.12.93
21.12.93 - 17.02.94
18.11.93 - 10.12.93
15.11.93 - 10.12.93
15.11.93 - 10.12.93
23.11.93 - 10.12.93
Mehmet Selim Kurbanoğlu
19.11.93 - 10.12.93
20.12.93 - 17.02.94
Meral Daniş Beştaş
16.11.93 - 10.12.93
16.11.93 - 10.12.93
15.12.93 - 17.02.94
23.11.93 - 10.12.93
15.12.93 - 17.02.94
16.11.93 - 10.12.93
16.11.93 - 10.12.93
30.11.93 - 10.12.93
Fuat Hayri Demır
03.12.93 - 10.12.93
16.11.93 - 10.12.93
10.12.93 - 17.02.94
72. At no point were the applicants ill-treated. They were dealt with in accordance with the law and their conditions of detention were acceptable.
73. On 10 December 1993 most of the applicants were brought before Judge Cafer Sadık Ural and released on bail, with the exception of Mr Elçi, Mr Acar and Ms Ölmez, who were remanded in custody. However, the Public Prosecutor of the Diyarbakır State Security Court appealed ex parte against these releases, whereupon the State Security Court ordered the re-arrest of MM. Kurbanoğlu, Beştaş and Erten, who were remanded in custody. Mr and Mrs Şahin were brought before Judge İsmail Gündez on 21 December 1993 and remanded in custody.
74. As a result of the preliminary investigation, a Public Prosecutor of the Diyarbakır State Security Court, Mr Ünal Haney, drew up an indictment dated 22 December 1993 against 23 people, including the applicants in the present case and certain prison officers, on charges of being members of and acting for the PKK terrorist organisation. Some of them were accused of other serious offences, such as helping PKK terrorists procure weapons, smuggling in and out of prison proscribed materials, such as cyanide or a knife, and receiving and implementing instructions from the PKK leadership.
75. On 17 February 1994 all the applicants had their first hearing before the State Security Court and were released on bail the same day. The prosecution had three principal witnesses. The main witness was Abdülhakim Güven, the PKK repented confessor, who confirmed his allegations against the applicants. A second PKK member, Fatma Demirel, appeared in court only to retract her previous statement, which she alleged had been extracted from her under torture. She predictably claimed before the court that that part of her statement concerning the lawyers' involvement with the PKK had been drafted by gendarmes who had forced her to sign it (paragraph 533 below). The evidence of a third informer was deemed inadequate.
76. Other evidence against the applicants consisted of their statements at the gendarmerie command, which they subsequently repudiated as having been made under duress. The State Security Court reserved the issue of the admissibility of those statements. The remaining evidence comprised incriminating documents such as PKK notes, receipts and newsletters, which the applicants alleged had been fabricated.
77. On 22 February 2001 the State Security Court suspended the proceedings for 5 years, to be taken up again should any of the applicants commit an offence of the same or more serious kind during that time; otherwise they would be definitively closed (see Law No. 4616 on conditional release, the suspension of proceedings or the execution of sentences in respect of crimes committed before 23 April 1999, paragraph 573 below).
C. The oral evidence
78. Three Delegates of the European Commission of Human Rights took evidence in Ankara between 7 and 11 December 1998. The applicants, with the exception of Hüsniye Ölmez, appeared before the Delegates, as did several Government witnesses. The applicants' representatives stated that Ms Ölmez maintained her application even though she did not testify for fear of having to re-live the events and because she was pregnant at the time. The oral evidence may be summarised as follows:
79. Mr Elçi was born in 1966. At the material time he was a practising lawyer in Cizre, but was now working in Diyarbakır.
80. In 1993 there had been some 10 practising lawyers in Cizre. He himself was registered at the Cizre Bar and handled different types of criminal cases. However, many people were taken into custody at that time and the applicant found himself more and more defending people before the Diyarbakır State Security Court.
81. On 23 November 1993 he was in his Cizre office at around 8.30 a.m. preparing a case with a client. Suddenly two armed officials entered his office and demanded that he accompany them to the Cizre police station. Two other officials waited outside. He was taken to the Cizre police headquarters, and his car was removed.
82. After waiting there for some time, Mr Elçi was taken back to his office by several other officials (requiring 2 or 3 vehicles). His office was searched. All his belongings were put in sacks, including many case files, notebooks, books (except legal text books), newspapers, magazines, an address book and other documents. Amongst the case files were several involving applicants to the European Commission of Human Rights: Ahmet Özkan and others v. Turkey (No. 21689/93), Cağirge and others v. Turkey (No. 21895/93) and Ertak v. Turkey (No. 20764/92). A further application by Süleyman Kutluk and 50 others was in the course of preparation. These Commission files were never returned to the applicant in their entirety, unlike the domestic files.
83. In answer to questions from the Commission Delegates, Mr Elçi claimed that a document purporting to have been found in his office headed “Comrade Elçi” with an “ERNK” stamp on it, was a complete fabrication and was not to be found in the document delivery report.
84. The officials had drawn up a short, hand-written report, concluding that nothing incriminating had been found. His brother, Ömer Elçi, being present, had signed the report.
85. The applicant was then taken to his house where another search was conducted, but nothing incriminating was found. He was returned to the Cizre police headquarters where his personal belongings (belt, money and wallet) were removed. He was blindfolded and put in a dark cell in the basement.
86. Later he was taken out of the cell by a large group of officials and kicked, beaten, threatened with his life and insulted. He was made to remove his clothes, cold water was poured over him and his testicles were squeezed. He was asked why he took cases concerning villagers who had been evacuated from their homes, and why he denounced Turkey abroad. He did not think this was an interrogation, rather the officials were venting their anger on him. This ill-treatment lasted some 15 to 20 minutes before he was returned to his cell.
87. One of the Cizre policemen involved in this was a certain Ramaran Hoca or Kanlıdere, who had already accosted the applicant in the street to check his identity. As a member of the Diyarbakır Human Rights Association, assisting destitute villagers at a time of great tension in Cizre, involving clashes between the PKK and State forces, threats had been made to him previously by the Cizre police.
88. During the night he was transferred to the Cizre district gendarmerie command, where he was kept blindfolded in a corridor in the basement. He was not ill-treated there. Either the next day or the day after, he was taken to the Diyarbakır provincial gendarmerie command where he was made to lie, double-blindfolded, on a cement floor. There were other detainees, including the applicant Mehmet Selim Kurbanoğlu, but nobody really talked to each other except in short whispers.
89. On the second or third day Mr Elçi was taken for interrogation. He was asked about his dealings with the PKK; when he said he had none, he was punched very hard.
90. Two days later he was interrogated again. He was confronted with Abdülhakim Güven, a prisoner and PKK confessor, whom Mr Elçi had known as a neighbour and fellow student. Mr Güven recounted that Mr Elçi had acted as a courier for him, taking notes to PKK aids in Cizre. Mr Elçi vehemently denied the allegations, whereupon he was beaten.
91. The Delegates of the Commission asked Mr Elçi about a statement made by Mr Güven that he had met a PKK connection called Beriwan at Mr Elçi's house. Mr Elçi denied this, suggesting that Mr Güven might have slandered him out of jealousy because of his success as a lawyer, whereas Mr Güven was a common criminal and murderer.
92. Mr Elçi claimed that two documents purporting to be records of interviews with him and a confrontation with Mr Güven were complete fabrications, as shown by the fact that he had not signed them.
93. A few days later he was taken in a vehicle to a field where his execution was simulated - officials fired a gun about 10 times and ordered him to talk. Mr Elçi shouted insults in reply. On the way back to the detention centre, he was again ordered to get out of the vehicle on a gravel road and a couple of shots were fired. He had been extremely frightened.
94. Three or four days later he was presented to the Public Prosecutor to whom he recounted his background. However, to avoid any fabrication of his statement, he refused to sign anything, whereupon he was insulted and returned to his place of detention.
95. Perhaps a couple of days later, Mr Elçi was to be presented to a court. He was taken into a room where his blindfold was removed and placed at a simple table where a bright light was shone in his face. He refused to sign a statement that was put in front of him, despite efforts to trick him into doing so. He was then taken to a back room, stripped naked and hosed down with cold, pressurised water, to the front of his body and genitals. His testicles were squeezed two or three times and he was freezing, aggravated by the fact that it was winter.
96. There were other people detained with him, including the applicant Fuat Hayri Demır, who at one point covered Mr Elçi with his jacket to protect him from the cold. He heard the applicant Hüsniye Ölmez moaning and crying. Niyazi Çem also called out to him. Mr Elçi was returned to the previous detention room where co-detainees said they had signed documents out of fear.
97. He was subjected to cold water hosing whilst naked on another day, together with Niyazi Çem, who was screaming. It seemed to last an hour and a half. Loud nationalistic music was played at the same time. They were ordered to sign or die. However, neither of them signed any document. Mr Elçi believed at that stage that he was indeed about to die.
98. Mr Elçi had only met Mr Çem when they had been detained together. The latter had been brought from İstanbul. Mr Elçi was not in custody at the same time as Mr and Mrs Şahin, who were also brought from İstanbul.
99. During his detention, Mr Elçi received generally only one piece of bread a day and was taken to the toilet twice a day. Despite the bitter winter cold, he was given no blanket. He sat on concrete in his own clothes. Some of the other detainees had a thin smelly blanket.
100. Mr Elçi had not been seen by a doctor when he was first detained. He was presented to a doctor on 10 December 1993, when he was taken to the Public Prosecutor. Apart from asking him whether he had any ailments, this doctor did not examine him, and Mr Elçi did not mention the ill-treatment, in order not to prolong his detention any longer. Anyway, he had no corroborating injuries on his body as far as he knew then.
101. Mr Elçi told the Public Prosecutor and the Diyarbakır State Security Court about the ill-treatment to which he had been subjected, but his impression was that he was not taken seriously. In the statement to the Prosecutor he was recorded as having complained of having been left naked with cold water being poured on him, of torture by electricity and of having had his testicles squeezed. However the electricity claim was incorrect. He had signed his statement to the Public Prosecutor without reading it over, as nothing detrimental had been said about him. From 10 December 1993 to 17 February 1994, Mr Elçi was detained on remand without further ill-treatment. On the latter date, he was discharged after recounting to the court his allegations of ill-treatment, and nothing had happened since, although the prosecution against him was still pending. At first he was accused of being a member of an illegal organisation, modified later to assisting members of that organisation.
102. Some time in 1995 or 1996, Mr Elçi was summoned by the police headquarters in Diyarbakır to give a statement about the treatment to which he had been subjected in Cizre. Some three years later, he was required by the prosecution office to undergo a medical examination which, naturally, disclosed nothing so long after the events. However, he repeated his earlier allegations. In the summer of 1998 he was informed that the Administrative Council of Cizre had decided not to pursue criminal proceedings against any of the Cizre officials allegedly involved in the matter. Mr Elçi objected to that decision but did not know what the outcome of that had been.
2. İmam Şahin
103. Mr Şahin was born in 1958 and was a practising lawyer in İstanbul at the material time.
104. On 7 December 1993, whilst the applicant was waiting to plead a case in the İstanbul State Security Court, he was taken into custody by policemen from the İstanbul Anti-Terror Department. From there, the applicant was taken to his home, where his wife was waiting, and a search was made. Both were taken back to the Anti-Terror Department before their children came home from school, so a neighbour agreed to look after them.
105. The officials were unable to explain why the couple had been detained, other than saying that they were acting on the instructions of the Diyarbakır gendarmerie. Mr and Mrs Şahin were kept together in the same cell until around 11 a.m. Two or three officers from Diyarbakir arrived and Mr Şahin was taken to a Turkish Airlines office where he paid for everyone's tickets to Diyarbakır, for which destination they left at 7 a.m. on 11 December 1993.
106. At Diyarbakır airport they were handed over to other officers and taken in a minibus, with their heads covered, to what he later learnt was the Diyarbakır provincial gendarmerie command.
107. Mr Şahin was not told about the charges against him. During interrogation he was accused of being involved in the closure of Eskişehir Prison, of being a PKK courier between various prisons, in some of which he had never set foot, and of denigrating Turkey. He acknowledged involvement in the campaign to close Eskişehir Prison.
108. He was asked questions about Abdülhakim Güven, whom he had never met directly. It was alleged that Mr Güven had used him as a courier. He and his wife were accused of defending left-wing and PKK cases.
109. It was five days later, when he was presented to the Diyarbakır State Security Court, that he was informed that Mr Güven had made formal allegations against him. He was not confronted with Mr Güven during his detention as far as he was aware, having been blindfolded throughout.
110. Mr Şahin had not made any applications outside Turkey on behalf of any of his clients. He had contacted the Human Rights Association and similar institutions about the allegedly inhuman conditions in the cell system at Eskişehir prison. He had not filed any applications for clients to the European Commission of Human Rights.
111. He had signed a confrontation record and statement which he subsequently disavowed, as the signature had been made under pressure after being tortured.
112. He was taken before an Investigating Judge who apologised for having to arrest him and his wife despite the two children, but he had been ordered to do so by his “chief”.
113. Mr Şahin was released on 17 February 1994, together with his wife. It took him two and a half years to recover from the experience and before he could resume his legal practice in İstanbul. In the meantime he performed his military service. He had no clients left when he started work again.
3. Arzu Şahin
114. Mrs Şahin was born in 1961 and was a practising lawyer in İstanbul at the material time.
115. On 7 December 1993 she had been at home when her husband telephoned around 10 a.m. to say that he had been taken into custody and that she should wait for him to be brought home by the police.
116. Four police officers and her husband arrived between 11-11.30 a.m. and she was told that she was also to be taken into custody. A search of about 40 to 45 minutes was made of the house and a report drawn up which they did not sign there. Nothing was seized. She asked a neighbour to look after their two children, as she was expecting to be away for several days. Mr and Mrs Şahin were taken to the First Branch of the İstanbul Police Headquarters, without being told of the reasons for their detention, other than a reference to unspecified instructions from Diyarbakır.
117. Around 4 a.m. on 11 December she and her husband were handed over to two plain-clothed officials from Diyarbakır, to where they flew at around 7 a.m. They were taken, head-covered, to a place called the JITEM at the Diyarbakır provincial gendarmerie command, according to the officials there. She claimed that the JITEM had no legal status.
118. In Diyarbakır they were not informed of what they were accused. The questions put to them were unrelated to any possible criminal offence. She was asked about her work for newspaper publishers whose editions included “Özgür Gündem”, a purportedly separatist newspaper. She was asked why she had married a Kurd and why she defended dissidents. She was told that she was a traitor and a separatist. No mention was made of European complaints.
119. It was only before the Public Prosecutor of the State Security Court, to whom she was presented on 21 or 22 December 1993, that she heard that Abdülhakim Güven had made specific allegations against her. She had not been confronted with him, as far as she was aware, being blindfolded throughout. The Prosecutor said that Mr Güven accused her of acting as a PKK courier, serving as a PKK lawyer for the newspaper, being financed by them and the like. It was true that she had signed a confrontation document concerning Mr Güven, but this was at the end of the alleged torture period when she was disoriented, intimidated and tricked into signing a document, the contents of which she had been unable to verify due to the blindfold.
120. The indictment dated 22 December 1993 concerning her and other detainees was not shown to her until 20 to 25 days after its issue, by her lawyers, when she was on remand at the Diyarbakır central maximum security prison.
121. The indictment mentioned that Mrs Şahin had drawn up documents which had been faxed to human rights associations in European countries. Mrs Şahin acknowledged having prepared documents which colleagues in Europe would have submitted to the European Commission of Human Rights. She also actively campaigned in Turkey against unlawful events and had spoken to foreign human rights delegations who had visited Turkey.
122. Prior to her arrest, she had visited a prison in Diyarbakır where she researched an article for “Özgür Gündem”, and had acted as the newspaper's representative in a civil defamation claim. During that visit, Abdülhakim Güven had been in the room. She had not taken up the defence of any PKK prisoners.
4. Nevzat Kaya
123. Mr Kaya was born in 1961 and at the material time was a practising lawyer in Diyarbakır.
124. On 18 November 1993 at about 3 or 4 p.m., three plain-clothed policemen went to the applicant's office which they searched even though they did not have the proper authorisation from the Public Prosecutor pursuant to Articles 58 and 59 of the Law on Advocates.They had had Mr Kaya's agreement. A record of the search was drawn up, which he signed. Nothing was seized.
125. He was then taken into custody at the Diyarbakır provincial gendarmerie command without any reasons being given. Prior to that time, he knew that other colleagues of his had been taken into custody by the JITEM, but he was detained by the police, so he made no connection with the previous events. On arrival at the police station he was told that he had been detained on the JITEM's instructions. His personal belongings were removed and he was taken for a medical examination before being handed over to JITEM officers at the hospital.
126. During interrogation he was told that he had PKK connections, about which he was asked. It was said that he was a PKK lawyer. He was confronted with someone purporting to be Abdülhakim Güven. The applicant did not see him because of a double blindfold. He had met Mr Güven when interviewing clients in Diyarbakır prison, at which interviews the former had been present as a prisoners' representative.
127. Mr Güven accused him of recruiting lawyers for the PKK, which Mr Kaya denied. According to a written statement by Mr Güven, not put to the applicant orally during the interrogation, Mr Kaya was accused of having acted as a courier between Mardin and Gaziantep prisons. However, Mr Kaya had never set foot in the latter establishment, and he denied the allegation.
128. Mr Kaya signed statements at the end of his interrogations after having been intimidated by harassment, kicking and beatings, and the fear of being left a cripple.
129. Among his co-detainees, the applicant saw that Tahir Elçi had been beaten up and was in acute pain. Meral Daniş Beştaş was moaning and freezing cold, presumably after being hosed down with cold water. This treatment had been inflicted on Tahir Elçi and Niyazi Çem in the toilet area at the end of the cell corridor, from which one could hear screams, shouting and pouring water. It was very cold outside at the time.
130. They were kept in a corridor and slept on the floor, one blanket for three people. Each day they were fed about half a loaf of left-over bread which had traces of other food on it. They were taken to the toilet twice a day and were given drinking water. Deafening nationalistic music was blaring all the time and they were blindfolded.
131. Before the Public Prosecutor Mr Kaya refuted the statement he had signed under torture.
132. On his release being ordered by a court, the applicant and several other lawyers were addressed by a gendarme regiment commander, Eşref Hatipoğlu, who warned them that, just because they had been released, they had not been cleared of suspicion as far as the security forces were concerned.
5. Şinasi Tur
133. Mr Tur was born in 1971 and at the material time was a practising lawyer in Diyarbakır.
134. On 15 November 1997 around 8.30 p.m. police arrived at his house and conducted a search. A report was drawn up concluding that no incriminating evidence had been found, and nothing was seized. Mr Tur was taken into custody at the Diyarbakır provincial gendarmerie command.
135. Mr Tur protested at the lack of authority and jurisdiction for his detention by the gendarmerie. He was told that he was in the hands of a gendarmerie intelligence service - the JITEM.
136. He was detained for 26 days (25 days according to official records) and interrogated about his professional activities and alleged involvement with the PKK, given his legal representation of cases before the State Security Court.
137. Mr Tur was confronted with Abdülhakim Güven, a PKK confessor whom the applicant had met as a prisoners' representative in Diyarbakır Prison when visiting clients there. The applicant's name and that of several lawyers had been cited in his confessions, but Mr Tur believed that these events would in any event have happened to him, without such denunciations, because of his human rights involvement. Mr Tur vehemently denied Mr Güven's allegations.
138. Contrary to official claims, he had not been confronted with his maternal aunt's husband, Seyfettin Aslan. He denied having carried out PKK tasks with him, including aiding, abetting and harbouring a wounded PKK member, who, in the applicant's view, had never existed.
139. Mr Tur was kept in a cell 2 x 1 metres. When in the cell, he was able to remove his blindfold. He received about a quarter of a loaf of bread a day and, as far as he could remember, he was taken to the toilet once every 24 hours. Drinking water was not readily available. He was forbidden to speak to other co-detainees. Those who disobeyed were severely beaten, insulted and tortured.
140. He claimed to have been severely beaten, insulted and threatened with execution. He was deprived of sleep due to very loud music being played all the time. He had been blindfolded throughout and had signed statements 25 days later under duress. He repudiated the contents of those statements.
141. Tahir Elçi, Hüsniye Ölmez and Meral Daniş Beştaş (and possibly Niyazi Çem) were also tortured, particularly with cold water hosing, which he heard being used on them in the toilet area. He recognised their voices, as he knew them well. They lost weight and their overall demeanour deteriorated as a result.
142. The officers who escorted them to interrogation were not the same as those who performed the interrogation. As far as he could tell, being blindfolded, 3 or 4 people conducted his interrogation.
143. Mr Tur was taken to a doctor at the end of the custody period but, as he showed no visible marks of torture, the doctor said he was unable to record anything. He nevertheless related his complaints of torture to the doctor, the Public Prosecutor and the Investigating Judge.
144. Before being released, he and some of his colleagues were addressed by a Diyarbakır regiment commander who warned them that the case was not closed and they would still be followed.
145. Mr Tur had been detained three times previously in connection with the PKK activities of his brother, Cesur Tur. His brother was killed in a clash in 1992. The applicant was convicted and sentenced to imprisonment twice for assisting and harbouring the PKK. This background might have explained his detention in December 1993. At the time of his appearance before the Delegates, he was serving a 6 year prison sentence for PKK related offences.
6. Sabahattin Acar
146. Mr Acar was born in 1964 and at the material time was a practising lawyer in Diyarbakır. His work involved both civil and criminal cases, including State Security Court defendants. He had visited some clients in the various regional prisons.
147. Around 9.15 p.m. on 15 November 1993 some 15 policemen, gendarmes and members of a special team went to the applicant's house and made a three hour search, without asking his permission and without any explanations. All his personal correspondence, articles and reports which he had written, and books which they considered to be illegal, were seized. However, the latter had all been lawfully purchased from book shops. A report was drawn up, listing the seized items. Nothing was ever returned to the applicant. Some of the materials were put in the prosecution file.
148. Mr Acar was escorted to hospital by police superintendent Numan, where a certificate of good health was delivered. He was then blindfolded and taken to the Diyarbakır provincial gendarmerie command in a taxi, during which trip he was punched and insulted. He was severely beaten on arrival, causing him earache. He was then thrown into a cell. He believed he was at the JITEM interrogation centre of the gendarmerie in the Ofis neighbourhood of Diyarbakır.
149. Two or three days later he was interrogated, double blindfolded. Three or four people seemed to speak. He was asked why he went to the prisons to talk to political prisoners; why he took on their defence; why he was a member of the Human Rights Association; why he prepared reports, inspected and gathered evidence of human rights abuses; and what connections he had with the PKK for whom he was said to be working. He was insulted, kicked, slapped and beaten during the interrogations, as well as being threatened with death.
150. Abdülakim Güven made allegations against him. Mr Acar knew Mr Güven, who had been present as a prisoner's representative when he had visited clients in prison. Although blindfolded, he accepted that he had been confronted with Mr Güven during the second (or third) interrogation.
151. Mr Acar denied all of Mr Güven's allegations against him, particularly the allegation that he had brought cyanide into Diyarbakır prison. In order to mitigate his own crimes, Mr Güven had obviously made things up, copying from another PKK confessor's statement involving a similar allegation about someone else (paragraph 532 below). He signed certain incriminating statements, unbeknownst to him at the time, under the pressure of torture, for fear of resuscitating a previous kidney injury he had sustained in a car accident, and of being left a cripple.
152. He was kept in custody 26 days (25 days according to official records) and recognised other colleagues who were there by their voices, such as Meral Daniş Beştaş, Mesut Beştaş and Arif Altinkalem. Tahir Elçi, Vedat Erten, Fuat Hayri Demir and Nevzat Kaya were in the corridor. Hüsniye Ölmez, together with Mr and Mrs Beştaş, were in cells.
153. Tahir Elçi, Niyazi Çem who had been brought from İstanbul, Meral Daniş Beştaş and Hüsniye Ölmez were subjected to a different form of torture than him - cold water hosing. He could tell from their screams and moaning.
154. The cell in which he was detained was small, dark, damp and very cold (below freezing). There was no heat or light. A filthy, worn out blanket was provided. He received a piece of stale bread once a day, drinking water twice daily and was allowed two visits, at 6 a.m. and 6 p.m., to the toilet per day.
155. He was brought to a doctor on 10 December 1993 who was afraid to note the applicants' allegations of torture in the absence of any visible injury, all bruising or other injury having cleared up during his 26 days' detention. He told the Public Prosecutor about the alleged torture, but it was not recorded. The Investigating Judge before whom he was brought noted some, but not all, of the applicant's allegations.
156. Mr Acar was indicted before the State Security Court and the proceedings were still pending.
157. Prior to his detention, Mr Acar had reported on human rights matters to Amnesty International and other international non-governmental organisations. He had been the Director of the Diyarbakır branch of the Human Rights Association between 1990 and 1992. Human rights abuses were frequent in the area at that time. The Association's premises were bombed and he was threatened and insulted in public by policemen. In this way he was harassed in his legal practice. The articles and reports which he had written about human rights abuses and which were seized during the search on 15 November 1993 were used by the Prosecutor against him.
158. In the indictment, reference was made to faxes he was alleged to have sent to human rights associations in Europe. He did not know whether this was a reference to the European Commission of Human Rights. He presumed it had meant non-governmental associations.
159. Mr Çem was born in 1965 and at the material time was a practising lawyer in İstanbul.
160. On 23 November 1993 he participated in a press conference given by the İstanbul Human Rights Association and lawyers of the İstanbul contemporary Jurists' Association, in front of the building of the İstanbul State Security Court, in order to denounce the allegedly unlawful detention and interrogation of fellow lawyers by the JITEM. At some time between 12 and 1 p.m., he was taken into custody.
161. He was held for two days in Gayrettepe, İstanbul (the police centre for political detainees), then he was transferred to the Bursa Orhangazi Gendarme Station. Around 25 or 26 November 1993, he was taken to Diyarbakır, where he was held at the Diyarbakır provincial gendarmerie command for 15 days.
162. Mr Çem's house was searched, but not his office. Nothing was seized.
163. In Diyarbakır he was taken by a team of plain-clothed policemen to an unknown destination. He was not interrogated on the first day.
164. On 27 or 28 December 1993 he was interrogated and accused of assisting a certain Rıza Altun to make contact with the PKK, which organisation the latter then joined. The applicant denied the allegation. He was told that Abdülhakim Güven had made the allegation. He had met Mr Güven as a prisoners' representative when interviewing clients. He was purportedly confronted with Mr Güven during the interrogation but, as he was blindfolded, he did not know if it was truly him. He refused to sign any confrontation report or statement, as he was not allowed to know their contents.
165. During the first days of detention he was severely beaten, his hair was pulled and he was threatened with various kinds of torture. He was stripped naked and hosed down with cold water. He was deprived of sleep by blaring military and Arab music.
166. Tahir Elçi was hosed too. He heard the screams of Meral Daniş Beştaş and Hüsniye Ölmez under torture. He had not met these people prior to his detention. He and Tahir Elçi whispered their names to each other.
167. On the day of his release, 10 December 1993, he was taken with others to see a doctor who asked if any of them had any visible wounds. Only one person, possibly Arif Altinkalem, had a bruise which the doctor recorded. Any injuries to the applicant had cleared up.
168. Mr Çem told the Public Prosecutor and the Investigating Judge about the ill-treatment to which he had allegedly been subjected. He repudiated the statements he had purportedly given. Neither recorded the torture allegations.
169. He was indicted before the State Security Court for having connections with the PKK. He was falsely accused of such activities as transporting heroin for the PKK and taking money from Mr Güven to assist the financially ailing newspaper, “Özgür Halk”, in İstanbul. Mr Güven subsequently withdrew the latter allegation. The proceedings were still pending.
170. During his detention Mr Çem was detained in a corridor with 10 to 15 other people; 3 or 4 people would share one blanket. Once a day he received a quarter of a stale loaf of bread and was taken to the toilet first thing in the morning. In case of urgency, people would be taken to the toilet. No washing facilities were provided.
171. Mr Çem saw two of his interrogators when his blindfold slipped whilst he was being hosed down with cold water. He saw them later when he was taken to the Prosecutor's office, but the escorting officer stifled any protest. He told the Prosecutor that he could identify at least two of his torturers, but it was not taken up.
172. When he was released by the court, he and other lawyers were addressed by a regiment commander called Eşref Hatipoğlu, and warned to be careful as they would be followed.
8.Mehmet Selim Kurbanoğlu
173. Mr Kurbanoğlu was born in 1970 and at the material time was a practising lawyer in Diyarbakır. Most of his cases were before the State Security Court.
174. On 20 November 1993 at 7.20 a.m. armed men rang at his door. He opened up and they searched his apartment without introducing themselves. He was allowed to telephone a cousin, Sadik Ateş, who came over. Nothing was seized. His cousin countersigned the search report.
175. He was taken into custody, blindfolded, at the Diyarbakır provincial gendarmerie command where, but a week before, colleagues of his had also been detained. He was held in a corridor for 21 days (20 days according to official records). After 2 or 3 days he was taken to another side of the corridor where there was a blanket on the floor. Around midnight he was interrogated. He was accused of doing more than just providing legal representation for PKK people. His interrogators tried intimidating him by saying he was not being detained in Diyarbakır but in Elazığ where it was known that the bodies of “disappeared” persons had been found.
176. He was constantly beaten when taken back and forth from interrogation, always after midnight, 5 or 6 times. He was kept blindfolded throughout the 21 days without any washing facilities. The corridor was crowded and he was unable to stretch out his legs. A piece of bread was given out in the evening, a quarter or half a loaf. In the beginning it was fresh, but after a few days it was stale and was obviously left-overs. They were given drinking water once a day and taken to the toilet twice a day. In case of urgency they would be allowed to go to the toilet. It was cold in winter, with a fan which made the air even colder. Loud martial music was played continuously except for a 2 or 3 hour break during the night.
177. Tahir Elçi and Niyazi Çem were held with him. They were taken to the toilet, from where he heard them screaming and shouting. They were beaten up and hosed with cold water. Mr Çem returned soaking wet and the applicant tried to dry his hair for him.
178. He believed that Gazanfer Abbasioğlu and Fuat Hayri Demir arrived after him and were in cells, as were Şinasi Tur and Arif Altinkalem. Mr and Mrs Beştaş were detained also.
179. Mr Kurbanoğlu had met Abdülhakim Güven when visiting clients in the Diyarbakır E-type prison where the latter was the prisoners' representative. He was confronted with someone purporting to be Mr Güven during an interrogation, but the applicant was not sure whether it was truly him due to the blindfold. This person made remarks about the applicant's associate, Şinasi Tur, but said nothing about the applicant. The applicant had had no prior knowledge of Mr Tur's purported PKK activities for which he was subsequently convicted and sentenced. They had just been school friends and had shared a legal practice together.
180. Later an interrogator told Mr Kurbanoğlu that Mr Güven had alleged that the applicant had acted as a PKK courier. Mr Kurbanoğlu denied this.
181. He signed certain statements, including a second fabricated search report, after being beaten and threatened with death. He was punched, slapped and kicked, with blows to his whole body. However, he was never stripped naked or doused with cold water like some of the other lawyers.
182. Prior to being presented to the Public Prosecutor, Mr Kurbanoğlu was seen by a doctor, to whom he recounted the beatings. However, nothing was noted as he had no corroborating marks on his body.
183. Before the Public Prosecutor, he denied Mr Güven's allegations and that any incriminating document had been seized at his home. No such document had been openly put to him during his interrogation.
184. Neither the Prosecutor, nor subsequently the Investigating Judge, commented on or recorded the applicant's account of torture.
185. Before being released on 10 December 1993, he and his colleagues were addressed by a plain-clothed officer who warned them that they were still under surveillance. Eventually he was released around 1 a.m.
186. Four days later the Public Prosecutor filed an ex parte objection to the applicant's release, as a result of which he was arrested on 20 December 1993 and detained for a night at police headquarters. Then he was transferred to the Diyarbakır E-type prison. Some 9 or 10 days later he and other lawyers were transferred to Mardin prison. He saw a doctor there about a chill he had caught and internal problems.
187. Criminal proceedings were still pending against him.
9.Meral Daniş Beştaş
188. Mrs Beştaş was born in 1967 and was a practising lawyer in Diyarbakır at the material time.
189. On 16 November 1993 around 5 or 6 p.m., when the State Security Court was closing down for the day, the applicant and her husband were stopped by four plain-clothed officials when they were leaving the court building. Her husband was told he was to be detained and interrogated and he gave her his personal belongings, whereupon she was told that she was also to be detained. Baki Demırhan and Arif Altinkalem had been detained at the same time. They gave their personal belongings to another colleague, F.L., who was with Gazanfer Abbasioğlu. They were blindfolded and there was talk of taking them to Silvan or Elazığ where the bodies of murdered persons had been found lately.
190. They were driven around, then taken into a building, separated, and left waiting, standing with their blindfolded faces to the wall for a couple of hours. Mrs Beştaş was then taken to a small room where she was ordered to hand over all her personal belongings, after which she was put in a cell, where her blindfold was removed.
191. Half an hour later she was taken out of the cell blindfolded to an interrogation room. She was made to sit on a stool and was pushed. Someone said, “Admit that you are a courier - a courier for the organisation”. She denied it and was slapped hard. She was threatened with electric shocks and being suspended. She was taken back to her cell to reflect on her situation.
192. The following night, around midnight, she was interrogated again. She denied that she was the branch manager of the Human Rights Association, and stated that she was its secretary. She was told that she had ties with the PKK. She was asked about her work for the Association, its links with the PKK, complaints made about Turkey to Europe and human rights abuses put before the European Commission of Human Rights. She acknowledged that she had denounced human rights abuses to foreign visitors and had sought to take measures to prevent further abuses. She had prepared cases for presentation to the European Commission of Human Rights. She insisted, however, that she had no ties with any illegal organisation.
193. Such interrogations went on for a week, including a more gentle interrogation when the interviewer talked with her about her work for the Association, her opinions and the legal profession.
194. Two days before being brought to court, attempts were made to get her to sign documents, the contents of which were not known to her. When she refused she was taken somewhere else, ordered to strip and hosed down with cold water for about an hour, fainting at one point. She was threatened with being tortured in front of her husband. However, she did not sign anything.
195. Mrs Beştaş knew Abdülhakim Güven as the brother of one of her clients and a prisoners' representative. When visiting clients at Diyarbakır E-Type prison he would be present. She was purportedly confronted with him while she was still blindfolded, but did not recognise his voice. She had been told that he had made accusations concerning her. She acknowledged in his presence that she had denounced human rights violations involving detained persons and had defended cases before the State Security Court.
196. Through a peep-hole in her cell she saw Tahir Elçi and Niyazi Çem (who had shouted out his identity on arrival in the corridor) standing naked in the toilet, which was near her cell. They were hosed with cold water twice and she heard screams and shouts.
197. Sabahattin Acar and Arif Altinkalem were in the cell to her left, Şinasi Tur to her right. Across from her was Hüsniye Ölmez who cried loudly “Don't do this”. Tahir Elçi and Niyazi Çem were kept in the corridor, where they and others were kicked and insulted.
198. She was in a large, damp cell on her own with two pieces of wood on the floor and a disgusting blanket. It was very cold. There was no heating or lightning. She was only allowed out for interrogation and the use of the toilet morning and evening. In the evening she was given a piece of bread, sometimes fresh, sometimes stale and sometimes obviously left over from someone's meal. There were no female officials or separate sanitary facilities for women.
199. On 10 December 1993 she was put before a doctor, to whom she said she was sick. He refused to examine her or assess the cough she had, only being prepared to note visible injuries from ill-treatment.
200. On 10 December 1993 she was brought before a Public Prosecutor, Ünal Haney, and an Investigating Judge, Cafer Sadik Üral, to whom she recounted her ordeal in detention, but neither showed any interest.
201. They failed to acknowledge her ill-health even though, unusually, she had to sit down in front of them rather than stand up. They ignored her claims that she could identify her torturers.
202. Before being released, she and other lawyers were addressed by a gendarme regiment commander called Eşref Hatipoğlu, who warned them that he knew that suspicious dealings were being carried out in the guise of human rights' advocacy.
203. After her release, she was so ill that on 13 December 1993 she went to a doctor, who diagnosed pneumonia and ordered her to stay in bed for 15 days. He gave her a medical certificate to that effect. She did not tell the doctor what she had experienced in detention.
204. Some time, perhaps in 1996, on an evening before the general election, Mrs Beştaş was followed by Abdülhakim Güven and 2 gendarmes, one of whom was from the JITEM. She and her husband were then followed by other people. She contacted fellow lawyers and the Bar association, and talked to the Chief Public Prosecutor, Bekir Selçuk, who advised her not to walk alone in the street.
205. Mr Beştaş was born in 1966 and was a practising lawyer in Diyarbakır at the material time.
206. The applicant gave the same account as his wife concerning their being taken into detention at the Diyarbakır provincial gendarmerie command (paragraphs 189-190 above). He was separated from her in the detention centre and taken to a cell upstairs. In the cell his blindfold was removed. Forty-five minutes later he was taken blindfolded to a room downstairs and asked questions about his position in the Human Rights Association, of whose administration he was not a member. He only worked in the same building as the Association, on the same floor.
207. At a second interrogation the next day he was accused of helping the PKK, acting as a courier between prisons, in some of which he had never set foot, as could be verified from prison visiting records. Similar accusations were made concerning certain provinces of whose whereabouts he was unsure. He denied any such involvement.
208. During the three or four interrogations, he was threatened that he would be tortured - suspension and electric shocks - in front of his wife, during which both of them would be naked. He was frequently slapped, kicked and pushed on his way to interrogation and punched a couple of times during interrogation. On the 24th or 25th day of his detention, he was taken to sign documents, the contents of which were unknown to him. He signed out of fear of what might happen to his wife. On his signature he wrote “IMT”, indicating his refusal.
209. There was a wooden board in his cell. It was dark and cold. He was taken to the toilet in the morning and evening where there was drinking water. In the evening he was given a piece of bread. There was so little of it that he was constipated throughout his detention. He had a stinking half-torn blanket which was too small to cover himself with, so he wrapped it around his feet.
210. A couple of days before the end of this detention period, loud music was played and he heard horrible screaming. He learned afterwards that probably people had been hosed with cold water.
211. He managed to make his wife aware of his presence in the building by coughing loudly, to which she replied with a similar cough.
212. He was purportedly confronted with Abdülhakim Güven during his detention, although he did not see him because of the blindfold. Mr and Mrs Beştaş had represented his brother. Mr Güven was also a prisoners' representative and was present during client interviews in the Diyarbakır prison. Mr Güven had not accused him of anything at that point.
213. Before being brought before the Public Prosecutor he was taken to a doctor who refused to examine the applicant's lung complaint. He was only prepared to note visible marks or bruises, of which the applicant apparently had none.
214. He was video filmed when brought before the Public Prosecutor. This film was relayed on television.
215. He gave a statement to the Public Prosecutor and Investigating Judge and told them of his ill-treatment.
216. Before being released he and his colleagues were addressed by gendarme regiment commander, Eşref Hatipoğlu, who called them “slime” and warned that he would not forget them. The applicant arrived home around 1 a.m. on the Friday.
217. After his release he consulted a doctor at the Mardin State Hospital Emergency Department, who diagnosed pneumonia. He did not recall what became of the medical certificate which he was given.
218. The following Monday, 15 December 1993, he was re-arrested following the Public Prosecutor's ex parte objection to his release. He was remanded in custody at the Diyarbakır E-Type prison for about 25 days before being transferred to Mardin prison for another 35 days. At a hearing on 17 February 1994 he was released. Proceedings were still pending before the Diyarbakır State Security Court.
219. He consulted the Diyarbakır prison doctor who prescribed medicine for him. He did not ask for a certificate.
220. Mr Erten was born in 1965 and was a practising lawyer in Diyarbakır at the material time.
221. On 23 November 1993 when leaving the Diyarbakır State Security Court around 11.50 a.m., he and a trainee lawyer were stopped by two plain-clothed officials who asked for their identity cards. After confirming Mr Erten's identity, he was obliged to go with them, giving his personal belongings to the trainee.
222. He was put in a car, blindfolded and taken to the Diyarbakır provincial gendarmerie command where he was kept for 18 days (17 days according to official records). He had been aware that colleagues of his had been detained in recent days. According to prosecution sources, this was because of accusations being made by a PKK confessor called Abdülhakim Güven. He realised he was being detained for the same reason, and was told as much by the detaining officers.
223. On entering the building he was asked if he was Vedat Erten and, when he confirmed that, he was slapped twice in the face, causing him to fall over. He was made to crouch down for 15 minutes and then told to strip off his clothes. Mention was made of taking him to a helicopter which, from a previous experience as a student detained by the JITEM in 1987, he had understood to refer to the form of torture known as “Palestinian hanging”. Ultimately his clothes were slung back at him and he was taken to some narrow place a few metres along where he was obliged to sit on a wet concrete floor, which smelt of toilets. He was ordered not to remove his blindfold. He heard the voices of some of his colleagues.
224. He was given about a quarter of a loaf of bread a day, sometimes a bit more if he asked for it. Drinking water was available in the toilet area where he was taken twice a day. One day no bread was distributed and he sensed that his colleagues must have been staging a protest. Loud music was played.
225. His interrogators ate food smelling of oil, onions and tomato purée. They threw their left-overs into a bin in the toilet, which the applicant took as a provocation to humiliate the detainees even more should they take food out of the bin in desperation. However, no prisoner touched the bin. Once when Mr Erten complained of the way the prisoners were being treated, he was kicked in the face, belly and chest. Thereafter he would be kicked whenever an official passed by.
226. After 10 to 12 days in custody, he was taken for interrogation. He sat on a stool and was allowed to remove his blindfold but was blinded by a very bright lamp shining directly into his face, which made it impossible to see anyone or anything else in the room.
227. He was ordered to “tell” and when he replied that he had nothing to say, he was beaten up. He was accused of acting as a PKK prison courier, which he denied. He was again beaten with the light off. He was forced to confess that he had taken several diaries, pens and cigarettes between prisons.
228. In the narrow place where he was held, he could hear Tahir Elçi's appalling screams, and his and Niyazi Çem's chattering teeth after they had been hosed with cold water. He heard Meral Daniş Beştaş sobbing. He heard someone threatening Hüsniye Ölmez with death if she did not tell all, after which she cried, “They'll kill me. They're out to get me. If I don't die, I'll be killed outside.” Mr Erten was slapped when he tried commiserating with Tahir Elçi, whose clothes were wet. Mr Erten was also slapped for chasing a fly from his face when the guard thought he was tampering with his blindfold.
229. Two days before being brought to the Public Prosecutor he was made to sign documents, the contents of which were unknown to him, for fear of being beaten up again. He heard other colleagues screaming and shouting, “Don't kill me. That's enough”, both before and after this document session.
230. He was taken to a doctor who refused to examine the applicant fully, just noting that the applicant had no marks on his face. The doctor did not therefore see the marks which were left after he had been beaten on the belly, back and the nape of his neck.
231. Two days later, around midnight, he was taken to the Public Prosecutor, who told him that he was accused of being a PKK courier both between prisons and between PKK members at large and prisoners. He was also accused for the first time of carrying on his person a document concerning the function of a PKK co-ordinator in the region.
232. Mr Erten claimed that he had been illegally framed and that the documents allegedly found on his person were inadmissible fabrications. A record of a purported confrontation with Abdülhakim Güven was read out to him, but the applicant could not confirm that Mr Güven was indeed the person who had been presented to him during an interrogation, and who had, in a forced, hoarse voice, accused the applicant of an offence. He had met Mr Güven when the latter was a prisoners' representative accompanying the applicant's clients at Diyarbakır prison.
233. Mr Erten told the Public Prosecutor, and subsequently the Investigating Judge, that he had been tortured and that the statements had been signed under duress. He told the Judge that he had resisted pressure from Abdülhakim Güven to act as a courier. The Judge released him. However he was kept blindfolded and returned with his colleagues to the interrogation centre. He was convinced they were going to be killed. Instead they were addressed by an officer who uttered warnings. He was released on 10 December 1993.
234. The Public Prosecutor lodged an ex parte objection to Mr Erten's release. Consequently, he was taken back to court a couple of days later and remanded in custody at the Diyarbakır E-Type prison. He was again presented to the court on 17 February 1994 and released. He told the court that he had been tortured and that the statements which he had signed were false. He denied the charges made against him.
235. Mr Demırham was born in 1966 and was a practising lawyer in Diyarbakır at the material time.
236. On coming out of the Diyarbakır State Security Court on 16 November 1993, he and Arif Altinkalem were stopped by members of the security forces who they guessed were from the JITEM. On disclosing their identities they were put in a car where they waited while a similar procedure was performed in respect of Mr and Mrs Beştaş. They were taken to the Diyarbakır provincial gendarmerie command, blindfolded. The applicant and Mesut Beştaş were put in cells on the upper floor, where he was held for 26 days (24 days according to official records).
237. He had anticipated his arrest as several of his colleagues had been detained the day before. On the first night he was taken for interrogation. In general he was made aware that the PKK confessor, Abdülhakim Güven, had alleged that he was in league with PKK prisoners, had acted as a courier for them, and had smuggled unlawful materials into prisons, e.g. a flick knife. The applicant denied the allegations.
238. The applicant's brother had been detained in the same prison as Mr Güven. Mr Güven also attended all interviews with clients. The applicant's brother said he had been under pressure to join the PKK and Mr Güven had told the applicant that his brother had not kept his promises.
239. The applicant was confronted, blindfolded, with Mr Güven. He signed certain statements, the contents of which he did not know, because of the psychological pressure brought to bear on him. During interrogation no mention was made of European human rights associations. He had assisted the Diyarbakır Human Rights Association prepare papers for clients. He was unaware of what the European reference could mean. He himself had never filed a petition for a client with the European Commission of Human Rights.
240. Mr Altinkalem was born in 1965 and was a practising lawyer in Diyarbakır at the material time.
241. He gave a similar account of his detention on 16 November 1993 as Mr Demırham (paragraph 236 above).
242. In the Diyarbakır provincial gendarmerie command he was made to crouch down, face to the wall, in a corridor. After an hour or two he was put in a cell. He did not know if he had been detained by the JITEM or the anti-terror department of the police. He was not told of the reasons for his detention even when he asked for explanations.
243. He was not taken for interrogation for one or two days. When he was interrogated, he was questioned about the cases he had defended before the State Security Court and asked if he had been paid. The implication was that there was a link between his cases and the PKK. He was accused of assisting PKK detainees by acting as a courier and not charging fees for his work. He was told that the PKK confessor, Abdülhakim Güven, had made certain allegations about him and other local lawyers. Mr Güven had been the prisoners' representative and attended the consultations he had had with his clients at the Diyarbakır E-Type prison.
244. He was confronted with someone purporting to be Mr Güven, but did not recognise him due to the blindfold. Mr Güven implied that the applicant's legal work made him a possible PKK sympathiser but no specific allegation was formulated. r Güven acknowledged that he had not given the applicant any notes to pass on as a courier.
245. He signed various statements. Being under physical and psychological duress, he was unaware of the contents of the statements except for a report which was headed “ERNK Receipt”, being evidence of financial assistance to the PKK, which document he had never possessed.
246. A medical certificate dated 10 December 1993 recorded that he bore marks of blows and violence on his body. He saw the doctor before being brought before the State Security Court and released. Once formally released, he and his colleagues were subjected to a warning speech by a gendarme.
247. The applicant discovered later that his name had never been mentioned in any of Mr Güven's earlier statements to the police. Afterwards he thought that he must have been detained because of his membership of the Human Rights Association and his assistance in preparing cases to the European Commission of Human Rights.
248. He stayed out of Diyarbakır for the next few months as there was an in absentia arrest warrant issued against him.
249. Mr Abbasioğlu was born in 1967 and was a practising lawyer in Diyarbakır at the material time.
250. On or around 15 November 1993, coming out of the State Security Court, he and several colleagues were subjected to an identity check. Several lawyers had previously been taken into custody and, that day, others were detained, but not the applicant.
251. On 30 November 1993 he was at a colleague's office when plain-clothed policemen and gendarme officers entered and checked his identity. He was told he was being taken into custody. He was taken by gendarmes to see a doctor. He was then taken somewhere, blindfolded, where he realised there were some of his colleagues. He was not given any reason for his detention until a couple of hours later, when he was accused of being a member of and assisting the PKK. He denied the allegations.
252. He had known earlier that Abdülhakim Güven had become a confessor; it was then that the arrests had started. He had met Mr Güven as a prisoners' representative who was present when the applicant interviewed a client accused of political offences. Whilst blindfolded, he was confronted with Mr Güven during his first interrogation. He recognised his voice. He was accused of being a member of and assisting the PKK, and of constantly defending PKK cases.
253. On release and after examining his case file, he realised more detailed false allegations had been made, such as that of being a courier.
254. The applicant signed certain documents under duress in order to avoid being tortured as Tahir Elçi, Meral Daniş Beştaş, Niyazi Çem and Hüsniye Ölmez had been. He did not know the contents of those documents at that point as he had been blindfolded.
255. After being technically released by the Judge, he and his colleagues were subjected to a warning speech by the gendarme regional commander, Eşref Hatipoğlu. The applicant understood the speech as a threat. It was only then that he was actually released.
15.Fuat Hayri Demır
256. Mr Demır was born in 1967 and was a practising lawyer in Diyarbakır at the material time.
257. Mr Demir was leaving the Diyarbakır State Security Court at lunchtime on 3 December 1993 with a colleague when he was stopped by two people in plain-clothes who checked their identity. They said they were from the gendarmerie intelligence unit. After confirming the applicant's identity, he was told that he was to be taken into custody.
258. He was put in a vehicle and his scarf was tied over his eyes. He was driven for about five minutes, got out of the car and was told to wait by a wall. Later he was taken into a building and made to crouch down in a corridor where he heard the whispers of some of his colleagues, such as Gazanfer Abbasioğlu and Tahir Elçi. They sat on a blanket on the concrete floor for some 8 days (7 days in custody according to official records).
259. He was not told why he had been detained although he knew that there were colleagues already in custody who, as rumour had it, had been incriminated by the PKK confessor, Abdülhakim Güven. He had met Mr Güven as a prisoners' representative in Diyarbakır prison. He had accompanied the clients whom the applicant had interviewed. The applicant did not suspect that Mr Güven had made allegations against him as he had no connections with him whatsoever, either professional or otherwise.
260. One or two days later he was taken for interrogation and accused of being a courier for the PKK between prisons, and assisting and harbouring the PKK. Someone calling himself Mr Güven was apparently present and urged the applicant to confess like him. The applicant said to this person, whom he presumed to be Mr Güven, that he knew very well that the applicant had not carried notes between prisons.
261. A few days later there was a terrible noise, with martial music blaring, and he heard people being ordered to sign documents or be killed. He was similarly threatened with torture - electric shocks - and felt obliged to sign documents, the contents of which were unknown to him. He had heard Tahir Elçi, Niyazi Çem and Meral Daniş Beştaş being subjected to cold water ill-treatment.
262. Mr Güven was born in 1962 and had no specific profession other than trading. At the material time he was remanded in custody in Diyarbakır E-Type prison, charged with membership of the PKK. In 1993 he had left the PKK over a disagreement and became a confessor, giving information to the State about the PKK, starting with certain lawyers whom he had known before his imprisonment (which started in 1989). The PKK had made him the representative of its organisation in prison and he was in charge and supervised all members' contacts with the outside world, including their defence lawyers. This was part of the education given to PKK associates.
263. Mr Güven had little recollection of the events and allegations he had made concerning the applicants, but confirmed many leading questions from the Delegates and the parties, which resulted in the following account:
264. Mr Güven confirmed a statement he had given in November 1993 (paragraph 425 below), which revealed that he had met a PKK member, code name Beriwan, at the house of Tahir Elçi, and that he had given Mr Elçi messages for certain PKK members outside the prison. Mr Elçi sometimes brought back the replies. He had known Mr Elçi since they were teenagers.
265. As regards Şinasi Tur, all he could remember was that Mr Tur had had contacts with the PKK in the area.
266. Mr Güven confirmed his allegation that in 1992 Sabahattin Acar had brought cyanide poison into the prison in order to harm PKK opponents who were putting pressure on members' families. Mr Acar had handed over the poison to Mr Güven directly. He had no comment on the statement of another PKK confessor, Abdülhakim Bakir, who had earlier identified someone else as having brought the poison into the prison (paragraph 530 below).
267. Without recalling details, Mr Güven said that Niyazi Çem had contacted a PKK association in Bursa prison. He stated that Mehmet Selim Kurbanoğlu, Vedat Erten, Mesut Beştaş, Meral Daniş Beştaş, Nevzat Kaya and Hüsniye Ölmez had all acted as couriers between prisons and with outsiders.
268. He confirmed his allegation that Baki Demırhan had given him a knife in prison, which Mr Güven had asked Sabahattin Acar to procure. He had no comment on the earlier statement made by Abdülhakim Bakir that he had obtained the knife from someone else (paragraph 532 below). Mr Güven did not recall what had happened to the knife or the cyanide poison. Perhaps the knife had been confiscated in a later search before any harm was done.
269. Mr Güven said that he had had only one or two contacts with Arif Altinkalem who, as far as he could remember, had helped in the exchange of notes once or twice. Gazanfer Abbasioğlu and Fuat Hayri Demır had acted as couriers.
270. Mr Güven was unable to specify the content of any particular note or document which any applicant had passed on, given the voluminous material involved and the passing of years. He remembered that İmam Şahin had been an İstanbul lawyer who had visited a client at the Diyarbakır E-Type prison, and Mr Güven had received notes from the Bursa and Gaziantep prisons via Mr Şahin. He had no special information about the services which Mr and Mrs Şahin had rendered the PKK. He could not recall exactly when he had met Arzu Şahin. According to information he had obtained from his friends, Mr Güven considered that he could trust Mr and Mrs Şahin.
271. Mr Güven had made statements to the Public Prosecutor about all the lawyers and had repeated them before the State Security Court, perhaps in late 1994. However, he had not answered the summons to attend the applicants' State Security Court hearings out of concern for his personal safety, having made an enemy of the PKK.
272. Mr Güven said that there may not be records of any visits to himself or other PKK members in prison by the applicants because those lawyers could have given any remand prisoner's name and entered the prison, thereby seeing Mr Güven or his associates.
273. He confirmed his confrontation with certain lawyers during their interrogations. Most of them were co-operative. Only Tahir Elçi and Meral Daniş Beştaş objected to certain statements. Neither party was blindfolded during the confrontation. Two officers were always present. His signature on the confrontation report only confirmed the accuracy of what he alone had said.
274. Mr Güven denied a statement in which he had purportedly confessed to carrying weapons which were subsequently used to kill two police officers prior to his apprehension in 1989. He later conceded that he may just have forgotten the details. He acknowledged his involvement in a plan to kill a prison officer while he was still a PKK associate remanded in custody. He also acknowledged that some of his statements about being tortured during interrogation to make him sign incriminating statements had been lies.
275. Prior to becoming a confessor, he had expected to serve some 8 years in prison (a 15 year sentence with early release), rather than receiving the death sentence or life imprisonment for his role in the death of the police officers. He denied that, in order to avoid dangerous repercussions from the PKK when he became a confessor, he had given the names of persons who had had no connection whatsoever with the PKK. In no way did the advantages of the Remorse Law lead him to accuse the applicants. However, after the life sentence was imposed on him, his confessor statements permitted his release from custody. Since then he had been a target for the PKK, although he acknowledged that he had been able to move around freely in Diyarbakır. He had changed his identity and was initially provided with a little financial assistance by the gendarmerie, from Commander Eşref Hatipoğlu. He knew that, if he gave false testimony as a confessor, an additional 5 year term of imprisonment could be added to his original sentence.
276. Mr Güven denied being encouraged by any officials to denounce the applicants, or the Human Rights Association, or to become a confessor. He left the PKK because their original aims, in which he had believed, had been undermined, and they were inflicting damage on the Kurdish people.
277. Mr Güven said that the lawyers' confessions had been recorded on videotape. His confrontations with them had lasted a whole day from 8 or 9 a.m. until night-time, a few days after the lawyers had been apprehended. His own legal representative, F.V., had suggested the applicants' names to him as being people who were “patriots and could join the struggle”. It was PKK established policy that its members should systematically refute any incriminating statements they had made before a Public Prosecutor or Investigating Judge.
278. He knew of a Fatma Demirel who had been a PKK member but, once in prison, she had been isolated because she was suspected of being a State agent.
279. Ms Demirel was born in 1970 and she had been detained on remand since January 1993 (7 years) for PKK offences, in particular the unlawful possession and transport of weapons. The criminal proceedings against her were still pending.
280. Ms Demirel had consulted the applicant, Hüsniye Ölmez, for legal advice in early 1992 prior to her detention, and they had become friends. Under torture, Ms Demirel had been obliged to become a confessor and had signed statements, the contents of which were not fully known to her. She discovered later that in such a statement, dated 26 January 1993, she had denounced Ms Ölmez, and other local lawyers whom she had never met, as being PKK couriers. However Ms Ölmez had not been her representative for these pending criminal proceedings and Ms Demirel had had no contact with Ms Ölmez or any other of the cited lawyers during her detention. There was no way, therefore, in which they could have delivered documents for her.
281. Before the Diyarbakır State Security Court on 22 November 1994, Ms Demirel refuted the contents of her original statement (paragraph 533 below).
282. Ms Demirel alleged that just before being brought before the Commission Delegates she saw somebody, with a name like Haci, on a higher floor of the court building who indirectly threatened her with unpleasant repercussions if she did not give testimony to the Delegates in the State's favour. He was apparently some expert sergeant.
18.Dr Lokman Eğilmez
283. Dr Eğilmez was born in 1958. At the material time he was a forensic expert at the Diyarbakır Forensic Medical Branch Office. Detainees were referred to him for a medical examination before or after they were taken into custody.
284. On 10 December 1993 Dr Eğilmez carried out an oral and external physical examination of the applicants. It was early in the morning. The security forces stayed outside and he examined them in groups of 3 or 4.
285. From the external examination he saw that one of the applicants had a simple lesion on his knee which he recorded. Although individuals had complained of ill-treatment, the doctor was not convinced of any systematic ill-treatment. Five or six people had said they had breathing difficulties. He began examining one or two of them with a stethoscope, whereupon the others decided not to be examined and withdrew their complaints.
286. They were all examined stripped to the waist. They were asked whether they had any marks on their bodies and they were told that, if there were, he would make a detailed examination. Apart from the bruised knee mentioned above, no one complained of any visible marks, although they all said they had been beaten. He saw no such marks himself. It was rare that he was presented with such a case and, when he was, he recorded it. The same day he re-examined Hüsniye Ölmez and Meral Daniş Beştaş who complained that they had been struck on their buttocks, but Dr Eğilmez found no marks.
287. He acknowledged certifying three days later, on 13 December 1993, two bruises on the lower knee of Hüsniye Ölmez. It had escaped his attention in the two earlier examinations because it was not shown to him. Sometimes ladies are reluctant to reveal parts of their bodies.
288. Hüsniye Ölmez had been examined on the 13 December 1993 in the company of Meral Daniş Beştaş. There were no marks on the latter. Another doctor had certified that Mrs Beştaş was suffering from pneumonia, which she had not mentioned to Dr Eğilmez on 10 December 1993. At that stage one would have expected her to show a fever, coughing and phlegm. However, she made no complaint.
289. Pneumonia is not a traumatic lesion. It can be contracted after catching cold and is often preceded by bronchitis. It would take about a week to develop and would induce fever. An x-ray would be needed to establish the condition and hospital treatment would also normally be required.
290. Dr Eğilmez could not remember how the applicants looked - whether the men were clean-shaven, unwashed or the like. He did remember, however, that they did not look tired, worn out or feverish.
291. As a forensic doctor his task was to record findings, not to take a patient's medical history or make a clinical examination. This is why he did not note people's general complaints and why he would only record visible marks.
292. If a man had had his testicles squeezed and had complained to him of that fact, Dr Eğilmez would have expected to see sensitivity in the genital area, reddening and swelling. None of the male lawyers complained of this, and he would not have examined genitalia unless asked to do so by a complainant.
293. The first question addressed in such examinations was whether there were any signs of blows, force or violence. However, if the individual was found to be suffering from an illness, such as a fever or heart condition, he would have noted the need for follow-up treatment in his report.
294. Around the relevant time he prepared some 4,500 reports, of which about 10% were custody examinations.
295. The examinations he conducted in the present case were recorded in a single report.
19. Dr Mahmut Demirel
296. Dr Demirel was born in 1967 and was a general medical practitioner at the material time. He did not recall having certified on 13 December 1993 that Meral Daniş Beştaş had had pneumonia. He had known her previously when she was a childhood neighbour.
297. Pneumonia would disclose symptoms of fever, malaise and lateral pain from coughing. It did not have to be preceded by bronchitis, but might be. A stethoscope examination could distinguish between the two. How someone reacted to the illness depended on his/her physical condition. Such a person would be able to stand up with assistance.
298. It may be caught by being exposed to cold. The diagnosis may be confirmed by an x-ray. Bed rest and antibiotics may be sufficient treatment. It is an acute illness which may not show any symptoms three days earlier.
299. Mr Hatipoğlu was born in 1945. At the material time he was a senior gendarme colonel, responsible for law and order in the province of Diyarbakır.
300. There was an interrogation and detention centre under his command within the city boundary. This unit was headed by Lieutenant Colonel Hasan Bozoğlu, the director of operations. The person in charge of interrogations was a non-commissioned officer (“NCO”), Sergeant Firat Yavuz Yedekçi.
301. The detention centre had been inspected by the European Committee for the Prevention of Torture (the “CPT”) every year and had been found to be up to standard after improvements had been made. It was not overcrowded. If it was full, detainees would be kept in their original place of detention awaiting transfer.
302. Mr Hatipoğlu remembered the detention of the applicants as it was an unusual incident. Abdülhakim Güven had made certain allegations against them concerning events in prisons, and the role of these lawyers was raised, albeit not proved.
303. Mr Güven, being a top-ranking PKK member, had given much reliable information, not just about the lawyers. He had repented and was entitled, like every citizen, to take advantage of the law of the country. Mr Hatipoğlu had given orders for him to receive a small sum of money, some 50 US dollars, for his personal needs. Mr Güven did not enrich himself by his confession; he only received bare subsistence from the State.
304. The gendarmerie had its own intelligence too. Following a rural operation and a skirmish, a PKK shelter was captured which contained archives, including a list of 8 people to be killed. His own name was at the top of that list. It was said to have been smuggled out of prison in a fountain pen carried by a lawyer. Lawyers were serving as couriers for the PKK, but did not confess to this in order to protect themselves from a ruthless PKK reaction.
305. As the person responsible for law and order in that region, he had been the person most responsible for the decision to detain the applicants. However, before the decision could be implemented it was necessary to notify the Regional Commander, as his superior, the Regional Governor and the Chief Prosecutor. The actual decision to detain had to be taken by the Prosecutor. There was only a single decision taken to detain all the applicants, although they could not all necessarily be taken into custody at the same time.
306. The detention centre at the time could hold 20 people (later reduced to 10 on the recommendation of the CPT). He denied that 45 people would have been held there, as might have been suggested by the number of names in the custody ledger. One person was held in each cell, according to the rules, so that they could not communicate with each other and co-ordinate their stories. When there were too many arrivals to accommodate all the detainees in the detention centre, other places of custody - at the central gendarme station, the provincial gendarmerie regiment or the police headquarters - would be used, but this would be recorded in the custody ledger.
307. He denied the possibility that people had slept in a corridor. His staff were instructed to treat detainees warmly and humanely. There was no hostility towards the applicants. Inhuman treatment was impossible.
308. Each cell had a collapsible camp bed, with a wooden floor. A blanket was given to each detainee. The cells were not dark although, on the CPT's recommendations, lighting and ventilation were later improved. At the end of the stairs there was a toilet and bathroom. There was a hot water heater in there now; he could not remember if it had been installed at the time. When a detainee needed to use the toilet, he would be escorted there. There was heating in the corridor which was sufficient. There were no women guards or separate facilities for women.
309. Three meals a day were served: a bread breakfast, a light lunch at noon consisting mostly of bread, and in the evening detainees were served the same meals as the soldiers, with not less than 3 dishes. Water was freely available.
310. Mr Hatipoğlu was not a specialist in interrogation and did not attend such sessions. He was kept informed of their progress by Mr Bozoğlu.
311. A specialised interrogation officer was alone with the detainee and another typed the record. Video recordings were made too, which included the 16 applicants. The tapes had been handed to the Public Prosecutor. He had watched the tape of the applicants twice and was struck by the naturalness of their facial expressions. The lawyers' statements had not been obtained by force, as was shown by the fact that a few of them refused to sign the various documents. Nothing happened to those people who refused.
312. After their release he met the applicants and they had a friendly private chat, over some tea. They told him that they had experienced certain difficulties, that they had not committed any crime and that it was impossible for them to have done so. However, they did not allege any ill-treatment. If they had done so, he would have replaced the interrogators and taken legal measures against them, as was his duty. However, nobody who was detained during his three years in that job was ever injured or killed. The CPT once arrived at 3 a.m. but found nothing untoward and heard no complaints, otherwise they would have reported it.
313. When most of the applicants were released on 10 December 1993 they were brought back to the detention centre to collect their personal belongings and Mr Hatipoğlu addressed them collectively. They had not been blindfolded once released. He congratulated them that the matter was over and said, inter alia, that they should be more careful and that everyone's existence depended on that of the State. He exhorted them to be good in their future conduct, because they could see that people who committed crimes would be brought to places like the detention centre. Tea was served. The applicants said they had been wronged and slandered. After midnight they left, shaking hands with him and they were taken to the town centre, as they had requested. A minibus was put at their disposal with a military escort. He did not see them again.
314. Mr Hatipoğlu accepted that some of the applicants may have found him threatening, but others found him to be friendly. He had had the power to do whatever he wanted with them at that time - torture, ill-treatment, brute force, etc.; instead he had offered them tea and transport.
315. However, such allegations were only made by people who worked against Turkey - as had been legally established. Nevertheless, he extended a friendly hand to them. The judicial authorities had a separate duty to perform from his.
316. He denied having threatened any of the applicants and was embarrassed by any such allegation.
317. Mr Bozoğlu was born in 1948 and at the material time he was the law and order director of the Diyarbakır provincial gendarmerie command. He supervised, inter alia, the interrogation unit.
318. The detention centre in Diyarbakır could hold around 20 people in individual cells with peepholes for surveillance. The floors had wooden grids and collapsible beds. Blankets were provided. There was lighting and heating in the corridors which filtered into the cells. People were taken to the toilet according to their needs and there was a bathroom. Interrogations were held in a special room. Breakfast and lunch were offered, possibly below the standard soldier rations, but a full evening meal was provided.
319. The custody records were accurate; the 45 people mentioned in the record would not all have been held at the centre. They would have been in the attached units (of which there were around 17). Interrogations were performed by individual, trained specialists accompanied by a typist. In important cases, interrogations were recorded. The detainee was not blindfolded.
320. Mr Bozoğlu had never met any of the applicants. Reports were made to him and he had never heard any allegations of ill-treatment. He had not been involved in the decision to detain them, nor had he seen them on their release. They would not have been blindfolded on their way from the court to the detention centre after their release in order to fetch their personal belongings.
321. Mr Bozoğlu was unable to say whether the law required that an interrogator put his name to a statement rather than just his service code number, as had occurred in the present case.
322. Mr Gül was born in 1960 and was the gendarme captain and commander of the district centre of Diyarbakır at the material time. He had been under the direct orders of Mr Hatipoğlu.
323. Based on information from a confessor, Abdülhakim Güven, the gendarmerie obtained the Prosecutor's permission to detain the 16 lawyers. The regiment commander, the Public Prosecutor at the State Security Court and the Provincial Governor were aware of that authorisation. When people were taken into custody, the Public Prosecutor was contacted to determine the length of the detention period. Nobody could be taken into custody without the Prosecutor's knowledge and approval. His verbal instructions on the matter were equivalent to an order, but the instructions would be later recorded in written form. It was the decision of the Public Prosecutor to detain the applicants in the present case. A record would have been kept indicating the name of the person who had informed the Prosecutor and had requested his authority to detain. The gendarmerie could take people into custody on their own initiative as long as the judicial authorities were informed and approved the decision. Written authority could exceptionally be given after a person had been detained, but in such a case the authority would be back-dated to the day when the person had been taken into custody.
324. Mr Güven's accounts confirmed other information in the gendarmerie's possession, the most important of which had been publications, documents and materials which were deemed unlawful and had been found in prisons during searches.
325. Mr Gül did not participate in the interrogation, but followed the results. The chief of interrogations at that time was Firat Yavuz Yedekçi. There was a special interrogation room measuring some 15 to 20 square metres or more in the Diyarbakır provincial gendarmerie command. One person interrogated. If a statement were to be taken, there was sometimes a typist, although the statement was recorded elsewhere. In the meantime, notes were taken by the interrogator himself which were not archived. People were never blindfolded during interrogation, but were under spotlights which prevented the interrogators' identification. The detainee sat on a stool in a comfortable environment.
326. Adjacent to the interrogation room was a listening room, connected electronically, so that questions could be relayed from the (unseen) chief interrogator to the interrogator, to be put to the detainee.
327. The results of the applicants' interrogations were reported verbally to Mr Gül, but he no longer remembered what was said. The interrogations were carried out strictly according to the law, despite allegations to the contrary in the media and by the PKK.
328. Some of the lawyers refused to sign certain documents, such as the confrontation reports with Abdülhakim Güven who had recognised all the applicants and made certain allegations. People were free not to sign such documents.
329. The jurisdiction of the police and gendarmerie could sometimes overlap and they could operate within each other's jurisdiction provided that there was proper notification. The external security of places of detention was the gendarmerie's responsibility. Accordingly, even though most of the applicants were arrested within the municipal boundaries of Diyarbakır, under police jurisdiction, it was for the gendarmerie to effect their detention and interrogation.
330. Mr Gül acknowledged that the applicant Arif Altinkalem was detained with others on 16 November 1993. He could only assume that there must have been good reason for that even though Mr Altinkalem's name did not feature in the previous statements of Mr Güven, and the applicants had not at that stage been interrogated, so his name would not have arisen during questioning. Mr Gül denied the suggestion that Mr Altinkalem had been detained at random.
331. The applicants immediately accepted the allegations against them, but it took 26 days to verify and investigate the case in depth, and to consult the judicial authorities. It was out of the question that the applicants had had to wait 10 to 15 days unnecessarily before being brought before the Prosecutor to make statements.
332. Twenty people were kept in cells at the Detention Centre. The others would have been kept at the provincial central gendarmerie command and would have been brought to the Detention Centre for interrogation.
333. The cells had wooden planks in the form of a grill to prevent contact with the concrete floor. There was a camp bed and one or two blankets depending on the cold. Portable electric heaters were in the corridor. It was not necessary to provide separate facilities for women.
334. The interrogator's identity could easily have been found by the judicial authorities if that had been necessary, even though his identity may not have been disclosed in any of the applicants' statements. This was to protect the interrogators' security and was lawful. There would be clear records still in existence of who had interrogated whom.
335. Mr Kayak was born in 1966 and was a gendarme special sergeant at the Cizre district gendarmerie command at the material time.
336. On 23 November 1993 he had received instructions to detain Tahir Elçi, who was to make a statement before the State Security Court. A police team was sent to detain Mr Elçi and he was handed over to the provincial gendarmerie command two days later for transfer to Diyarbakır. He had no other information about Mr Elçi.
337. Mr Kiyak was not involved in the actual arrest or subsequent searches of Mr Elçi or his premises. All seized documents were handed over with Mr Elçi to the Diyarbakır team and he had no involvement in the return of such documents.
338. Mr Elçi was kept in the custody room which was 3 square metres in size and had a camp bed.
24.Firat Yavuz Yedekçi
339. Mr Yedekçi was born in 1962 and at the material time he was chief of the interrogation unit at the Diyarbakır provincial gendarmerie command.
340. There was a team of 10 interrogators by whom interrogations were conducted under his control. From the listening room connected with a closed circuit television system and a microphone, he could intervene with the interrogators to direct questioning. He was always accompanied by someone in the listening room, but the interrogator was alone with the detainee. The interrogator would make notes of the interrogation, on the basis of which questions would be put again in an interview room and a statement typed up.
341. The interrogator would sit at a table with the detainee sitting opposite him, on whom spotlights were trained. The closed circuit television system permitted relevant video recordings to be made, which in the present case were handed to the prosecutor's office of the State Security Court. A hidden microphone hung above the person being interrogated.
342. A prisoner called Abdülhakim Güven, the political representative in prison, was interviewed over a few days and made a statement about PKK activities. The statement (more than 100 pages) was handed to the Chief Public Prosecutor at the State Security Court who then gave instructions to apprehend and interrogate certain people.
343. Some of the applicants immediately accepted having acted unlawfully. Others refused to sign statements.
344. Mr Yedekçi had not participated in the confrontation sessions between the applicants and Mr Güven which had taken place in the interview room. This room was not connected to the closed circuit television system and, therefore, the confrontations were not recorded on video. Mr Hüseyin Gaziankep had signed the confrontation documents in the present case.
345. None of the applicants were blindfolded during interrogations. Nor did any of them allege having been exposed to ill-treatment or threats during interrogation.
346. The interrogator would conduct the interview session when a statement would be typed up following the individual's responses. There was normal lighting in that room and blindfolds were not used. The interrogator had no fear of being identified. That was his job.
347. Murat Kirikçi conducted the applicants' interrogation. The statement procedure did not necessarily occur on the same day as the interrogation, but was based on the interrogator's notes.
348. Mr Yedekçi did not recall the exact reason why Arif Altinkalem was detained on 16 November 1993, the same day as Mr Güven's incriminating statement, even though Mr Altinkalem's name had not featured in that statement.
349. People were usually told when they were apprehended why they were being detained and it had to be recorded in the apprehension report. Although there was no specific mention in any of the applicants' apprehension reports, they must have been informed orally.
350. If people were unaware of the reason for their detention, his staff would tell them.
351. The detention area had two floors, with 20 cells, later reduced to 10 after the CPT's intervention. Each cell had metal doors with slits in the upper part. There was a wooden plank on the floor and a military camp bed. Detainees received the same food as the soldiers, and their needs were catered for. There was fuel central heating which had replaced burning stoves.
352. Mr Haney was born in 1958 and at the material time was a Public Prosecutor (no. 26050) at the State Security Court.
353. In Diyarbakır it was the Chief Public Prosecutor at the State Security Court who gave orders to detain people. Investigations could be instigated on the basis of verbal instructions; the law did not require a written order.
354. Mr. Haney stated that he had had nothing to do with the apprehension of the present applicants. They were apprehended on the instructions of the Chief Public Prosecutor, Bekir Selçuk, in accordance with Article 104 of the Code of Criminal Procedure. Such instructions could have been given orally. Mr. Haney did not know if the Chief Prosecutor would have kept a note of such oral instructions.
355. The applicants were brought before him on 10 December 1993. He explained the charges against them and asked to hear their defence. He read out their statements as recorded by the gendarmes, listened to their defence and recorded fresh statements.
356. They denied the charges and complained of ill-treatment, all of which was recorded. If there were corroborative evidence of ill-treatment in a file, he would take action.
357. He had been a Prosecutor for some 10 years by then and knew what an ill-treated person would look like. So he considered that the applicants' mere allegations were insufficient to be taken seriously. The bruise found on someone's knee did not indicate torture. 95% of detainees connected with terrorist offences claimed to have been tortured. It was a mere defence tactic. He never came across a case which required further action from him because of alleged ill-treatment. Anyway, it was not his duty to investigate allegations of torture, being a State Security Court Prosecutor, and the applicants, all lawyers, could have filed complaints in the normal courts.
358. Mr Haney had drawn up the indictment in the applicants' case based on Abdülhakim Güven's considerable evidence, and the incriminating documents about the PKK found in the offices of nine of the lawyers.
359. The search of Tahir Elçi's office revealed a note addressed to “Comrade Tahir Elçi”, bearing the stamp “ERNK” (the political wing of the PKK) and sent to him by the PKK. A note addressed “to the office of the co-ordinator of the Amed State (Amed being the PKK's name for Diyarbakır) was found in Vedat Erten's possession. It was a note written to PKK members in the mountains and who were active in the area. A note with the stamp “ERNK” was found on Mehmet Selim Kurbanoğlu. A note addressed to “Comrade Fuat Demir” with an “ERNK” stamp on it was found in Fuat Hayri Demir's office. A note addressed to “Comrades Mesut and Meral” were found in the possession of Mesut and Meral Beştaş. These notes were written by PKK members.
360. A report in Hüsniye Ölmez' possession was addressed to “Mr President”. A document was found in Sabahattin Acar's possession signed by the “Union of Patriotic Intellectuals of Kurdistan”, regarding the work and activities of the PKK's congress. Four receipts from the “ERNK” to be passed on to lawyers handling PKK cases were found in the possession of Arif Altinkalem. Mr Haney considered that the applicants' denial of the authenticity of these documents was another mere defence tactic.
361. The reference to European institutions in the indictment concerning Mr Elçi, Mr Demırhan and Mr and Mrs Şahin, related to the PKK campaign to discredit Turkey in the eyes of foreign Governments and to weaken it, in order to further their separatist objectives. In no way were these references to the European Commission of Human Rights, to whom individuals were entitled to complain, and the State had not put any obstacles in the applicants' way.
362. Mr Haney was involved in the initial court proceedings, during which the applicants denied the charges against them and were released. Perhaps the fact that the cases were still pending [in December 1998] was caused by the complexity of the case, involving a large number of suspects and numerous prison establishments.
363. Article 10 of Law No. 2845 on the establishment and judicial practice of the State Security Courts gave State Security Court Prosecutors powers to investigate the offences within that court's jurisdiction under Articles 154 and 156 of the Code of Criminal Procedure. This overrode the special jurisdictional protection given to the prosecution of lawyers for ordinary criminal offences under Articles 58 and 59 of Law No. 1136 on Advocates. This was also made explicit in Article 9 (a), (b) and (c) of Law No. 2845:
“Those who commit and who are accessories to the above mentioned crimes, regardless of their title and the nature of their official duty, must be prosecuted by the State Security Court”.
364. In other words the procedures in the present case were carried out in accordance with Articles 9 and 10 of Law No. 2845 and Articles 154 and 156 of the Code of Criminal Procedure.
365. Mr Özer was born in 1971 and at the material time he was working at the Diyarbakır Detention Centre. His principal task was to take the completed criminal files of detainees to the State Security Court. He had had nothing to do with the applicants' detention or interrogation. He had just taken their files to court.
366. He knew of the 16 lawyers but had only met Mr and Mrs Şahin at the time, neither of whom had been blindfolded.
367. If a colleague forgot to sign a document, he would sign it for him. He had signed one such document in the case of İmam Şahin, although he had not formulated its contents. He thought that the person who typed the statement had been Hüseyin Gazi Ates; Murat Kirikçi had been the interrogator. As far as he could remember, the witness had had Mr Kirikçi's notes and he had put the latter's questions to Mr Şahin and had the replies typed up. Mr Özer was present when Mr Şahin signed his statement. He had chatted at length with Mr and Mrs Şahin many times and Mr Şahin had lamented the fact that he and his wife had been used by “them” and duped.
368. Mr Özer then said that he had not been present when Mr Şahin signed his statement. He had no opinion on whether it was desirable or not to keep a suspect unaware of the identity of the interrogator. The suspect was not, however, blindfolded.
369. Mr Özer acknowledged that a signature seemingly like his was on a statement purportedly made by Arzu Şahin but not signed by her, but he did not remember exactly.
370. Mr Kiricki was born in 1971 and was an NCO for interrogation and investigation in the Diyarbakır gendarmerie. He had had a month's training for that job.
371. He had interrogated the 16 lawyers. He thought that the detention of so many lawyers was normal although he could not recall a similar incident. He had been guided during the interrogations via the closed circuit television system by his superior officer, Mr Yedekçi.
372. First the lawyers asked why they had been detained, even though they must have been given the reasons earlier. They were informed that they were there to answer Abdülhakim Güven's allegations, and the interrogation started with the allegation that they had acted as couriers between prisons. Mr Kiricki did not recall what had been the applicants' initial reaction to the allegations.
373. The interrogation was then interrupted and resumed later (lapse of time unspecified), when they confessed to the courier charges. The change of attitude was probably due to reformulated questions which had been drawn up after the first interrogation had been analysed by his superiors.
374. The lawyers were confronted with Mr Güven, who spoke first and to whom the detainees responded. They knew Mr Güven but disagreed about certain matters amongst themselves. However, there were no significant contradictions.
375. Mr Kiricki refused to comment on whether he should have further questioned those lawyers who refused to sign their statements. Then he explained that those had been busy days; the applicants' detention periods were coming to an end; there was little time left; he had taken statements from them; he accepted any refusal not to sign and, anyway, the Public Prosecutor was to take another statement.
376. Interrogations took place in the morning, after breakfast. The detainee would then have lunch and dinner. He would be taken to the toilet as needed and given water when it was requested. Interrogations varied in length from two to two and a half hours and could have been every day.
377. In the interrogation room spotlights were trained on the detainee so he could not see the interrogator, who sat at a desk. The closed circuit video system was on the back wall.
378. The inability to see the interrogator was a security precaution and had a psychological effect on the detainee. He took notes of the interrogation. Later the detainee would be taken to an interview room where his statement would be taken by a transcriber in his presence. Blindfolds were not forbidden, but were not used. He was not in fear of his safety in the interview room when he could be seen by the detainee.
379. Mr Kirikçi could not recall why Mr Özer's name appeared on Mr Şahin's statements. Mr Özer was one of the 9 or 10 people who made up the interrogation team.
380. He had not signed the record of Mrs Şahin's statement and could not recall the reason for that. He had interrogated her. A colleague must have signed it when he saw that Mr Kiriçki's signature was missing.
381. During interrogations, he communicated with the persons in the adjacent room with microphones and a closed circuit system.
28.Hüseyin Gazi Ateş
382. Mr Ateş was born in 1967 and at the material time was working as a typist at the investigation and interrogation branch headquarters. He had typed the statements of the 16 lawyers in the presence of the interrogator and each suspect. He typed what the suspect had said. He could not understand the question whether it was the interrogator who read out his notes, which the suspect would just confirm. He had never experienced a situation where the suspect disagreed with the interrogator about what the former had said on a previous occasion.
383. Mr Ateş would sign what he had typed; later the interrogator would sign the statement and take it to the suspect.
384. There had been another typist at the time called Adem Aktaş who could have signed the statement of Mrs Şahin.
385. Mr Dönmez was born in 1962 and at the material time worked in the interrogation section of the anti-terror department at Cizre police headquarters.
386. A warrant order was received by fax from the Diyarbakır gendarmerie to apprehend Tahir Elçi. It was stated that Mr Elçi had links with the PKK and was involved in that organisation's activities, particularly as a courier. This information was conveyed to Mr Elçi when he was apprehended.
387. On 23 November 1993 he went with a team of six or so people, accompanied by the team responsible for external security, to Mr Elçi's business premises. The people in that team included Ali Kara and perhaps Ramazan Hoca.
388. During the search of Mr Elçi's office, which lasted about half an hour, many documents were seized which, for security reasons, could not be catalogued in detail on the spot. A first report was signed straight away indicating what had been seized. A subsequent confiscation report indicating the same documents would have been drawn up. The body search report was also drawn up at headquarters although it had been conducted when Mr Elçi was apprehended in the early morning.
389. The more detailed catalogue of the materials was made up at police headquarters and indicated that 68 case files had been seized.
390. The documents and Mr Elçi were handed over to the gendarmerie. Mr Dönmez could not explain why there was a faxed confiscation report in the Diyarbakır Prosecutor's file and not an original. Mr Dönmez knew nothing about the return of documents to Mr Elçi.
391. The return of documents would be recorded in writing and signed by the owner. Documents containing no incriminating evidence would be returned in this way by the judicial authorities. One of the seized files concerned the application to the European Commission of Human Rights by Süleyman Kutluk.
392. A large number of journals or newspapers were seized for examination as to their possible incriminating nature. He did not know the results of that examination.
393. The list of documents in the confiscation report was drawn up in Mr Elçi's presence in the office of the head of department, Ali Kara. Mr Dönmez did not recall a document with an “ERNK” stamp on it. Mr Elçi was not held in the detention room as he was a well-known lawyer. He did not see Mr Elçi after he had been handed over to the gendarmes.
394. Mr Kara was born in 1967 and at the material time was the head of the Cizre district anti-terror department of the Şırnak police headquarters.
395. Mr Elçi was apprehended and his office searched following a fax from the Diyarbakır gendarmerie command headquarters in connection with alleged offences arising from the statement of Abdülhakim Güven. However Mr Kara did not recollect clearly whether Mr Güven's name had been cited in that fax. It appears that Mr Elçi was told this. According to new human rights rules, when someone was apprehended he was told of the offence of which he was accused. The Public Prosecutor may have been informed verbally as a matter of urgency.
396. Objects and documents that might have involved an offence would have been seized. If the location were unsuitable, the record would have been drawn up at headquarters, with the detainee's consent.
397. It was a sensitive matter to search a lawyer's office. Mr Kara did not know about confidential lawyer/client matters but, anyway, he did not examine the seized documents. He could not recall the signatures on various documents, but their identity could be established by the directorate general. All the documents and objects seized in Mr Elçi's office and home, including his 68 case files, were handed over to the Cizre district gendarmerie command. Mr Kara did not know anything about their return.
398. The document bearing the “ERNK” stamp was found in Mr Elçi's diary which he had on his person. Mr Kara's signature appeared on the faxed confiscation report which mentioned this document. As a rule, documents were handed over with the individual, but perhaps this one was overlooked at the time. The original would have been sent to court, if requested. If not, it would have been archived at the district police headquarters in the individual's file. Mr Kara had no explanation for the existence of two confiscation reports, one more detailed, but both with the hour 12h.00, 23 November 1993, on them.
399. The officers making the final delivery report must have forgotten to recover the significant “ERNK” document. Mr Kara did not have an explanation for the discrepancy of 67 case files seized in one report and 68 case files in another. Nor he could explain why the delivery report referred to the Commission case file of Süleyman Kutluk but not the confiscation report that he had signed.
400. Mr Kara had no knowledge of the systematic use of code-names by the PKK whereas the “ERNK” document referred directly to “Comrade Tahir Elçi”. Nor did he know why Mr Elçi would be carrying such a document on his person when the wave of arrests concerning lawyers had begun a week earlier. He denied having fabricated the document.
401. Mr Elçi stayed in Mr Kara's office, drinking tea, while at the Cizre police station, and would have been handed over around midday that same day, 23 November 1993, to the Cizre gendarmerie, as soon as the procedures had been completed.
402. Mr Kara denied that Mr Elçi had been put in a police cell and ill-treated. He did not know about any administrative investigation into this matter. He had been the subject of another investigation concerning a signature.
403. Mr Şener was born in 1964 and was a team leader in the Diyarbakır gendarmerie at the material time. He had apprehended Şinasi Tur, Nevzat Kaya and Ganzanfer Abbasioğlu.
404. Mr Tur was apprehended at his home on the evening of 15 November 1993, following an order from the provincial gendarmerie command in connection with the alleged PKK activities of the three applicants. Mr Şener did not see the written order himself.
405. Accompanied by Mr Yildirim, Mr Şener entered Mr Tur's house. A third member of the team, Mr Dogan, waited outside in a vehicle. Mr Tur was told that, according to the provincial gendarmerie command, he was active in the PKK; hence his apprehension had been requested. His house was searched, but nothing incriminating was found. He was taken to a doctor at the State Hospital and then delivered to the gendarmerie.
406. Nevzat Kaya was apprehended at his office on 18 November 1993. The office was searched but nothing incriminating was found. He was also taken to hospital before being handed over to the gendarmerie.
407. Mr Şener had no clear recollection of Mr Abbasioğlu's apprehension on 30 November 1993, other than the fact that the search had not revealed any incriminating evidence.
408. None of the detainees was blindfolded.
409. Mr Öngün was born in 1960 and at the material time was a police officer in Diyarbakır.
410. He was involved in the apprehension of Sabahattin Acar on 15 November 1993 around 7 p.m. Officials from the provincial gendarmerie command had called at police headquarters and requested that Mr Acar be apprehended and handed over to them.
411. Mr Öngün went with 4 or 5 other officers to Mr Acar's house, Mr Acar refused to open the door until the authenticity of the procedure had been confirmed. He required an acquaintance of his, Chief Superintendent Numan, to call by and identify Mr Öngün and his colleagues as police officers.
412. Mr Numan arrived around 10 p.m., during which time documents could have been destroyed, although no evidence of that was found.
413. Mr Numan told Mr Acar that he was being investigated for suspected PKK connections and that he was to be taken into custody and handed over to the Diyarbakır gendarmes.
414. Mr Acar then allowed the team to enter and search his house. A record of seized documents was drawn up. He had no clear recollection of certain incriminating documents such as that bearing an “ERNK” stamp or another entitled the “Union of Patriotic Intellectuals of Kurdistan”. All he remembered was gathering and recording documents and books with a political content, without examining them.
415. Mr Acar was not blindfolded at any stage.
416. Mr Durmuş was born in 1965 and at the material time was the head of a team at the İstanbul Anti-Terror Department.
417. He was involved in the apprehension of Niyazi Çem and İmam Şahin.
418. A fax message was received from the Diyarbakır gendarmerie that these lawyers were wanted for assisting the PKK by acting as couriers for prisoners.
419. On 23 November 1993 Mr Çem was accosted at the İstanbul State Security Court. He was told of the charges against him. He was taken to the Department where he was body searched. A team went to his house to conduct a search. A detention note was sent to the State Security Court for a period of time to be authorised for his detention pending the arrival of the Diyarbakır gendarmes. 7 days were authorised but, before the expiry of that period, he was handed over to the Diyarbakır gendarmes who apparently took him to Bursa.
420. Nothing was seized during the body or house searches.
421. Mr Durmuş knew Mr İmam Şahin and apprehended him at the State Security Court just before a hearing. Mr Durmuş recalled nothing about Azru Şahin.
422. He met Mr Şahin some time after these events at the State Security Court where they did not have any time to talk. All Mr Şahin said was that he had been detained in connection with some PKK confessor.
D. Summary of other relevant evidence
423. The parties submitted various documents to the Commission and the Court. The Government also presented two video cassettes. The Court has had particular regard to the following material:
1.The relevant parts of the four statements of Abdülhakim Güven (a PKK confessor) to the gendarmerie
a) statement of 15 November 1993
424. Lawyers acted as couriers between the PKK and prisoners. They set up firms, as required by that organisation, e.g. the partnership of E.Y. with Gazanfer Abbasioğlu, and Selim Kurbanoğlu with Şinasi Tür. Nevzat Kaya was making similar efforts. Gazanfer Abbasioğlu acted as a courier.
b)statement of 16 November 1993
425. Mr Güven stated that he had met a PKK guerrilla (code name Beriwan) at Tahir Elçi's house. Mr Elçi was a courier between prisons and the Hakari – Şırnak and Siirt areas.
426. At the PKK's request, Baki Demırhan brought a flick knife into prison, and Sabahattin Acar brought cyanide with the help of his client, the brother of Recip Akkus. Mr Demırhan was part of a team of lawyers who brought PKK publications and books into prison.
427. Hüsniye Ölmez, Meral Daniş Beştaş, Baki Demırhan, Vedat Erten, Mehmet Selim Kurbanoğlu and Fuat Demır (to a lesser extent) also acted as couriers between the Diyarbakır E-type prison, as well as the Mardin, Batman, Mus and Merkez (women only) prisons. They carried, inter alia, notes, instructions and educational materials.
428. Mr Tur had various PKK duties, including acting as a courier and transmitting the PKK's decisions to the prison and prisoners' statements recorded for the organisation. He was also part of the team bringing in PKK publications and books. He had the trust of the organisation and had official links with it.
429. Mr and Mrs Şahin were PKK contacts for İstanbul and its European organisation, passing on information from prisons.
430. Mr Çem was in touch with the PKK's centres in prison. Mesut Beştaş transmitted notes with the help of other PKK couriers. He was also part of the team of lawyers bringing in PKK publications and books. He passed on messages to two previous detainees in the PKK militia, called Cevat and Mahmut. He was the latter's legal representative. They were caught in possession of PKK money amounting to £ 90 million.
c)First supplementary statement
431. Mr Güven mentioned contact with a PKK member called Ahmet Elçi. The latter was in charge of the incidents in Cizre during Newroz in 1992.
432. Hüsniye Ölmez was asked on behalf of the PKK to find a buyer for furniture left in the apartment of a detained PKK member, F.A., who had been jailed. She did not manage to do so.
433. Mesut Beştaş acted as a courier for the PKK, transmitting notes. For example, once he passed information to a person called Fehim (code name Kocer) who was wanted by the security forces, and he also took notes to the militia members called Cevat and Mahmut.
d)Second supplementary statement
434. Mr Güven alleged the involvement of Hüsniye Ölmez in the disposal of the furniture of a PKK detainee, with the initials C.K.
2. Statement of Abdülhakim Güven before the State Security Court Public Prosecutor on 7 December 1993
435. Mr Güven stated that he had become a PKK sympathiser after being influenced by PKK propaganda provided by a certain Ahmet Elçi. He later met a PKK member (code name - Beriwan) at the house of Tahir Elçi, and thereafter began working for the organisation as a courier, propaganda and activity organiser, recruiter and fund raiser. After his capture, he became the PKK's political representative in the Third Dormitory of the Diyarbakır E-Type Prison, where plans were made to kill prison warders. There were also plans concerning turned confessors. To this end, Sebahattim Acar delivered cyanide to him and Bakir Demırhan brought him a flick knife. However, these items were found in the confessors' dormitory before they could be used.
436. Tahir Elçi had conveyed messages to Cizre by way of notes placed in an address book. Mesut Beştaş also took notes to Mr Güven's friends. Hüsniye Ölmez, Meral Daniş Beştaş, Bakir Demırhan, Vedat Erten and Mehmet Selim Kurbanoğlu frequently carried organisational notes and educational materials to other prisons and the rural section of the organisation. Fuat Hayri Demır did so less often. Şinasi Tur maintained relations between the prison and the rural section, conveying journals and conference reports. Mr and Mrs Şahin and Mr Çem maintained the co-ordination between the European and İstanbul organisations and between İstanbul and the prisons. Gazanfer Abbasioğlu acted as a courier and maintained contacts between the Diyarbakır and Gaziantep prisons.
437. Various applicants complained of the excessive pressure being placed on members to become confessors by Prosecutor Tanju at the State Security Court. Mrs Beştaş and Ms Ölmez stressed the matter more than others. They insinuated that he should be killed.
438. Mr Güven also mentioned plans to kill the provincial gendarmerie command's most senior officer.
3. Evidence of Abdülhakim Güven before the Diyarbakır State Security Court on 1 June 1995
439. At a Diyarbakır State Security Court hearing on 1 June 1995, Abdülhakim Güven appeared and the statement he had made to the gendarmerie was read out to him. He confirmed its correctness. [Defence counsel for the applicants repudiated his statements as being a self-serving attempt to gain an acquittal and release.]
440. Mr Güven stated that he was the general representative of the PKK in prison and used to attend the interviews which defence lawyers had with their clients. These lawyers thus mostly saw PKK members.
441. He denied that he had been tried as being a member of the PKK. An investigation against him was made, apparently concerning some written material, but a decision not to proceed was taken.
442. Once the prison PKK members identified a lawyer as being “patriotic”, a decision was taken to contact him, as had been the case with Şinasi Tur.
[Defence counsel denounced these declarations as fictitious.]
4. Statements (all subsequently repudiated by the applicants) taken by officers of the Diyarbakır provincial gendarmerie command
a) Tahir Elçi
(Undated statement which Mr Elçi was recorded as having refused to sign)
443. Mr Elçi was recorded as stating that since his school days he had had a circle of friends who had relations with the PKK. Names of PKK members were cited. He maintained PKK activities in the urban area. He had become a PKK sympathiser in Cizre in 1987. He was apprehended in 1989 and detained at the Diyarbakır E-type prison in 1990 where he received PKK ideological and theoretical training. As a student he organised forums, boycotts, protests and propaganda slogans.
444. Mr Elçi introduced Mesut Beştaş to Abdülhakim Güven, whom he had known for a long time and who liaised with Mr Elçi's brother. A PKK member (Beriwan) was in charge of the town of Silopi, Cizre, and frequently went to Mr Elçi's house. He had acted as a courier for Mr Güven once the latter was in prison, taking notes and the like, hidden in address books and diaries. He had helped a member, code name Firat, to transport sacks full of guns. Mr Elçi was said to have acknowledged his possession of an “ERNK” document and connections with Abdullah Öcalan, the leader of the PKK. He kept and disseminated propaganda publications.
b) İmam Şahin
(Statement dated 20 December 1993 and signed)
445. Mr Şahin was recorded as stating that he had sympathised with the PKK, being influenced by its propaganda. He carried out various tasks assigned to him, such as liaising between members held in different prisons and helping members settle in İstanbul. He had connections with certain high-ranking members (whom he named). His wife assisted the organisation by conveying correspondence and co-ordinating various activities in different prisons. He was the lawyer for the Özgür Gündem newspaper.
446. Mr Şahin took part in the campaign to close the Eskişehir Prison, having repeatedly been asked by “them” to put pressure on State authorities. He and his wife, Niyazi Çem and certain Diyarbakır lawyers analysed the situation. They pursued members' cases and passed on any State security information they obtained to the PKK.
447. He had direct contact with the European PKK organisation. He cited certain incidents and members' names. He brought together other İstanbul lawyers who were deemed “patriots”. He selected potential members of the DEP Party, which many lawyers joined, following the efforts of himself, his wife and Niyazi Çem.
448. Amongst his duties, he was to collect, fabricate and spread propaganda about, for example, ill-treatment in police custody, allegations of extorted statements, the unlawful operation of courts, and unlawful arrests and detention; and about the fact that the PKK was an organisation acting in self defence, not for terrorism, that villages were burned down and plundered and that State death “squads” were in operation, etc. The intention was to defame the State, and all kinds of lies were faxed to Europe on the instructions of the PKK. His wife was involved in this work, as were Selim Kurbanoğlu, Sebahattim Acar, Hüsniye Ölmez, Niyazi Çem, Meral and Mesut Beştaş, Vedat Erten, Gazanfer Abbasioğlu, Nevzat Kaya, Şinasi Tur, Fuat Hayri Demır, Arif Altinkalem, Tahir Elçi and Baki Demırham.
449. Mr Şahin was also recorded having admitted that he acted as a courier out of the Bursa, Gaziantep, Mardin, Elazığ and İstanbul prisons.
c) Arzu Şahin
(Statement dated 22 December 1993 and signed)
450. Arzu Şahin was recorded as stating that one of her PKK duties was to belittle the Republic of Turkey in the international arena. This was done by fabricating applications to the European Court of Human Rights, in which false allegations were made of torture being used against people, even lawyers.
451. Mrs Şahin was further recorded as having said that she was a PKK sympathiser as her husband was Kurdish and gave assistance to the PKK. She acted as a PKK courier between prisons and PKK prisoners. She took part in the successful campaign to close down the Eskişehir Prison. She and her spouse had connections with PKK activities in Europe.
452. On one occasion she believed she had transported documents and hand grenades for the PKK from Diyarbakır to İstanbul. Two people picked them up from her house. They stayed two days and then were taken away by Niyazi Çem. One of these people was a woman called Beriwan. Other lawyers working for the PKK were MM. Elçi, Acar, Tur, Erten, Çem, Beştaş, Demırhan and Demir, and Mrs Beştaş.
d) Nevzat Kaya
(Statement dated 6 December 1993 and signed)
453. Mr Kaya was recorded as stating that he had met members of the PKK for the first time in 1990. A young man came to his office saying that he was a PKK member and the “ERNK” leader in Diyarbakır. Mr Kaya was asked to help by acting as a PKK defence lawyer for a small fee. Mr Kaya was anyway charging low fees at that time. A week later he took a sealed envelope from this person to a client of his who was detained on remand at the Diyarbakır E-type prison. He acted as a courier between members, such as Abdülhakim Güven, in different prisons. On one occasion he brought many T‑shirts, pyjamas, jackets and shirts for the PKK prisoners, together with pamphlets. He sent a fax on behalf of a representative called R.A. from the Diyarbakır Human Rights Association to the European Human Rights Association. He also smuggled audio-cassettes for this person. Almost all the lawyers were engaged in such activities, including all the applicants in the present case, whom he cited.
e) Şinasi Tur
(Statement dated 8 December 1993 and signed)
454. Mr Tur was recorded as saying that he had been imprisoned in 1993 when he underwent a high-level training course, after having made a “statement of self-criticism”. Before his imprisonment, he had had contacts with PKK leaders in the Gap district and the mountains, and had acted as a courier to such prisoners as Abdülhakim Güven, using cigarette packets, address books, diaries and the like. He had harboured a dying PKK member at a relative's house and, with the help of Selim Kurbanoğlu, delivered the body to a specific place in November or December 1992. Mr Tur cited various lawyers involved in similar activities, including all the applicants. Moreover Sebahattim Acar together with someone else were said to have smuggled cyanide into the Diyarbakır E-type prison.
f) Sabahattim Acar
(Statement dated 7 December 1993 and signed)
455. Mr Acar was recorded as stating that he had first met PKK members when visiting his father's village. He had considered them “liberators”, having sympathised with them since he was a schoolboy. He was taken to meet other members and advised that, as a Kurd, he should struggle against the “fascist Turkish State” in the urban areas, defending PKK detainees for a small fee. Mr Acar had mentioned that all the Diyarbakır lawyers working in the State Security Court, including the applicants, were voluntarily working for the PKK.
456. He informed these people that the commander of the Diyarbakır provincial gendarme command was anti-Kurdish, exerting extreme pressure on PKK supporters in the region, and that he should be assassinated.
457. Thereafter he acted as a courier between prisons, constantly meeting Abdülhakim Güven and other political representatives. He defended detained PKK militiamen for a small fee, spread propaganda and persuaded and threatened recalcitrant militiamen to return to the mountains on release.
458. The defence lawyers ensured PKK coordination between prisons, smuggled out press-releases for the Özgur Gündem newspaper, smuggled in poison, a knife, messages and prohibited publications, intimidated Public Prosecutors to ensure the aims of the PKK detainees, and disseminated false propaganda in Europe. He worked closely with Hüsniye Ölmez on all of this. He was paid between 500,000 and 1,000,000 lire in travel expenses each time he carried a message between prisons. He himself had smuggled cyanide to Abdülhakim Güven. He photocopied the State Security Court files of PKK confessors and other captured members, giving the files to a specified PKK member, code named Şehmuz. Other such incidents were described.
459. He had obtained books and articles praising the PKK in order to learn more about the organisation, and took them into prison for training people there. He used to write reports on incidents in the region which he faxed to Human Rights associations in Europe with a view to blackening and discrediting Turkey in its treatment of Kurds.
g) Niyazi Çem
(Statement dated 7 December 1993, which Mr Çem was recorded as having refused to sign)
460. Mr Çem was recorded as stating that he sympathised with the PKK because of his Kurdish origins and had used his professional skills to assist it - acting as a courier and defence lawyer. He was engaged in disseminating propaganda to discredit the Turkish State abroad. He conveyed oral instructions to Abuldhakim Güven regarding the interruption of a review called “Free people”. He was given 5‑10 million lire, as his activities for the PKK prevented him doing more legal work, and once transported 2 kilos of heroin from Diyarbakır to İstanbul. For five days he also harboured an ailing PKK woman in his house and procured medicine for her.
461. Mr Çem was tipped off not to return to Diyarbakır as Abdülhakim Güven had become a confessor and might have been about to denounce him.
h) Mehmet Selim Kurbanoğlu
(Statement dated 6 December 1993 and signed)
462. Mr Kurbanoğlu was recorded as stating that he had sympathised with the PKK since his school days and had become more and more influenced by them when he acted as their defence lawyer and through his friend Şinasi Tur. He met Abdülhakim Güven who said he would provide him with cases, in return for which he had to act as a courier, as did other lawyers. He received occasional sums of up to 1,000,000 lire in travel expenses for carrying messages between prisons. He helped Şinasi Tur transport the body of a dead PKK member.
463. He had received an “ERNK” note about his courier activities one evening on his way home from the State Security court. He had forgotten to take it out of his pocket, so it was found on him when he was apprehended.
i) Meral Danis Beştaş
(Undated statement, which Mrs Beştaş claimed she had not signed, but her refusal was not recorded on the document)
464. Mrs Beştaş was recorded as stating that she had known PKK members for years, having become a sympathiser when she was a law student, it being an organisation engaged in an armed struggle with the Turkish State for Kurdish freedom and independence.
465. After marrying Mesut Beştaş and setting up a law practice with him, they gradually became involved as PKK couriers between prisons. Lawyers who did not support the PKK could not plead cases before the State Security Court. She spread propaganda belittling the Turkish State. She and Hüsniye Ölmez tried to expose the State Security Court to public scrutiny and she worked for the Diyarbakır Human Rights Association. She acted in solidarity with other applicants.
466. The PKK had told her that she would receive PKK funding to open an office. She had a close friendship with Abdülhakim Güven. She denounced to the PKK a particular prosecutor who intimidated and hindered her and Ms Ölmez in their defence work, and had threatened them with arrest. There was talk of eliminating him. Discussions were held about defence tactics, as some accused PKK members were too passive before the State Security Court, and the training of remand prisoners was raised.
467. Mrs Beştaş copied the court case files of confessors and showed them to the organisation. She and her husband converted PKK money into Deutschmarks. They took oral and written messages to the women's section of the Mardin Elaziğ Central Closed Prison. They delivered other messages to the Diyarbakır E-Type Prison. On one occasion she received 400,000 lire for travel expenses. She had had a PKK brochure in her bag when she was apprehended, which she had intended to photocopy and give to her friends.
j) Mesut Beştaş
(Statement dated 6 December 1993 which, although signed, had been marked by Mr Beştaş with the letters “IMT”, to signify his refusal)
468. Mr Beştaş was recorded as stating that he had become a PKK sympathiser at school due to the second-class status of Kurds and the PKK goal of Kurdish freedom and independence. He cited several applicants who, together with him, defended PKK members on the instructions of the organisation. If one did not support the PKK, one had no State Security Court work. He acted as a PKK courier to and from prisons and gave several specific examples. Militiamen visited him at home to receive information about the cases of detained members. At Abdülhakim Güven's request, he conveyed a message hidden in an address book and a pen to PKK members and he brought messages back to Mr Güven. He changed millions of lire into Deutschmarks, given to him regularly once a month, which he handed over to a high-ranking PKK member. He accused many of the applicants of being PKK couriers too. On the day of his apprehension he was carrying an “ERNK” sealed message which he had forgotten to take out of his pocket.
k) Vedat Erten
(Statement dated 8 December 1993 and signed)
469. Mr Erten was recorded as stating that he had become a PKK sympathiser through the influence of propaganda disseminated when he was a student. It was a “fashionable” opinion to hold. He cited many of the applicants as having close relations with the PKK, advocating its policies and defending its interests. They all acted as prison couriers, meeting people like Abdülhakim Güven. Mr Erten was paid for his travel expenses. He gave specific examples of messages he had carried. As he had no work, he asked the PKK representatives to refer cases to him. When he was not paid, he received a minimum 750,000 lire fee per client from the organisation.
l) Baki Demırham
(Statement dated 7 December 1993 and signed)
470. Mr Demırham was recorded as stating that he had commenced sympathising with the PKK at school where its publications were circulated. Once in legal practice, he visited clients in prison and met people like Abdülhakim Güven, who criticised him for providing insufficient support to the PKK. They threatened him with no work if he continued in this manner. As Mr Demırham was extremely poor and the PKK was fighting for Kurdish independence, he accepted all their assignments. Mr Güven used him as a courier and paid him 500,000 lire for travel expenses. He carried hidden notes in a diary and a pen. He cited a few examples. He smuggled a flick knife into prison and gave it to Mr Güven. Many of the applicants were also involved in courier work. They sent faxes to European human rights associations and denounced incidents as if they had been perpetrated by security forces, with the intention of blackening the reputation of the Turkish State. He recalled a PKK forum where certain lawyers had received political, theoretical and military training for 6 months. He felt no remorse for his PKK activities.
m) Mehmet Arif Altinkalem
(Statement dated 7 December 1993 and signed)
471. Mr Altinkalem was recorded as stating that he had been impressed at school with PKK exploits in 1978-1979. When the army took power in 1980, the PKK's activities were interrupted but as of 1984 they resurfaced. He supported the PKK, taking part in demonstrations and the like. He frequently visited the Diyarbakır Human Rights Association which was spreading PKK propaganda and receiving PKK visitors. He worked closely with another lawyer, Sedat Aslantaş, who had PKK connections. He accompanied Mr Aslantaş to see clients in prison and was introduced to Abdülhakim Güven. They took a message for him to the Gaziantep prison. They used an address book and a pen. They were to procure PKK publications for Mr Güven which were to be sent through himself, Baki Demırham or Meral Danis Beştaş. Mention was also made of Tahir Elçi's assistance. Messages were carried back from Gaziantep to Mr Güven. Mr Aslantaş and Mr Altinkalem were given 500,000 lire for travel expenses. He said that nearly all the Diyarbakır lawyers were engaged in PKK activities, and cited most of the applicants.
472. He had been given four “ERNK” receipts to transmit to lawyers from outside the area who had made PKK contributions. These were allegedly found on his person when he was apprehended.
n) Mehmet Gazanfer Abbasioğlu
(Partial statement submitted, undated, unsigned)
473. Mr Abbasioğlu was recorded as saying that he had become a PKK sympathiser and had participated in demonstrations and the like in their support. The organisation suggested that the lawyers would be more effective working in teams, so Mr Abbasioğlu joined the office of a colleague. He used to visit the Diyarbakır E-Type prison where he met Abdülhakim Güven, a high-ranking PKK officer. Clients were referred to Mr Abbasioğlu.
o) Fuat Hayri Demir
(Partial statement submitted, dated 8 December 1993 and signed)
474. Mr Demir was recorded as stating that he had acted as a prison courier for people like Abdülhakim Güven, using a small address book and cigarette packets. He and his fellow lawyers were shocked when they learned that Mr Güven had become a confessor, and they feared denunciation. He cited the code names of various PKK members whom he had met. In one message he carried, there was mention of Hüsniye Ölmez and Nevzat Kaya. He procured 20 micro-cassettes for a PKK member. The message asking him to do this was found on him when he was apprehended.
p) Hüsniye Ölmez
(Statement dated 8 December 1993 and signed)
475. Ms Ölmez was recorded as stating that she had some sympathy with the PKK, being Kurdish herself. She was contacted by two PKK members and asked to assist. She had replied that she was already doing so in defending militants and militiamen captured by the security forces. She gave her visitors 300,000 lire as they said they had no money. On another occasion she doctored an identity card for one of these PKK members. Once she harboured a 2 kilo bag of heroin overnight. She gave more money and procured medicines on other occasions. On a visit to her father, she was photographed with PKK members, she being dressed in PKK colours, holding a gun. She received an increasing number of PKK defendants, but did not charge for her legal services. She worked for the PKK and acted on their instructions.
476. She became a prison courier, such work intensifying in 1992. She tried doing less but it was not possible. She carried messages for Abdülhakim Güven using a pen and a diary. She gave a few examples of those messages and cited various other PKK contacts, as well as many of the applicants. Lawyers who refused to assist the PKK received no cases. She was also required to assist in order to protect her family. She contributed to the defamation of the Turkish State with faxes addressed to the European human rights association. At one stage Mr Güven had asked Ms Ölmez about a particular Public Prosecutor, but she did not know him. She heard later that there were plans to assassinate this person. She cited many of the applicants who had also acted on PKK instructions.
477. A document in which she had denounced the Turkish army was found on her when she was apprehended.
5. An identification and confrontation report with statements
478. A collective statement in which Mr Güven identified the applicants, and they acknowledged him, was drawn up on 7 December 1993 and signed by Mr Güven as well as by most of the applicants. Although the names of MM. Elçi and Çem and Mrs Beştaş appeared, it was recorded that they did not sign the document.
479. Mr Güven alleged that the applicants had worked as PKK couriers and the applicants purportedly conceded that in a standardised form. Similar reports were drawn up on 8 December 1993 in respect of Mr Tur, and on 16 December 1993 in respect of Mr and Mrs Şahin.
6. Other statements by the applicants, their associates or relatives at the material time
480. Shortly after their initial period in gendarme custody, the applicants gave statements to the Diyarbakır Human Rights Association which were apparently forwarded to the London based Kurdish Human Rights Project in December 1993 and January 1994. The statements became part of the applications to the Commission and are summarised in paragraphs 13-69 above. Other statements were taken by the Association around that time, including a statement dated 30 November 1993 from Burhan Acar, the nephew of Sabahattin Acar, confirming the latter's description of his arrest and the search of his home on 15 November 1993 (paragraph 37 above). The brothers of Tahir Elçi, Ömer and Mehmet, confirmed in a statement dated 15 December 1993 the applicant's version of the search and seizures made at his office and home on 23 November 1993 (paragraphs 13 and 18 above).
481. An associate of Gazanfer Abbasioğlu, Zeynep Tasli, who had been present when the former was aprehended, stated that she and Mr Abbasioğlu had signed a search report of his office even though no such search was in fact made.
482. Further detailed statements were submitted to the Commission in late October and early November 1998 by MM Elçi, Çem, Beştaş, Altinkalem, Abbasioğlu and Demirhan, as well as by Mrs Beştaş, confirming their original allegations.
7. Search, seizure and apprehension reports
a) A disputed seizure record concerning the office of Tahir Elçi (faxed copy only provided by Government)
483. The report dated 23 November 1993 recorded a search at Mr Elçi's office around 10.30 a.m. and the seizure of several documents, including materials entitled “Kurdish-triumph”, “Kurdish-merciless”, “The DCP (the Democratic Party) Constitution”, “Kurdish-motherland”, “ERNK” (National Liberation Front of Kurdistan) publications - “The hope of the people”, 67 case files and a hand-written note saying:
“Comrade Tahir Elçi, Comrade, we have received the Mazlum Doğan Conference Resolution you sent to us, and we have passed on the note you gave to Ferhat to the leader. But there are not enough weapons. Put pressure on the smuggler; and our old messenger has been caught. Look after his case as well. Rescue him and tell Comrade Selahattin to do that job quickly. Revolutionary greetings. Signed Roserin”.
484. The note had Mr Elçi's signature on it, and was stamped “ERNK”, but no original was ever produced. Only a faxed copy existed in the State Security Court file.
b) Undisputed report concerning Tahir Elçi
485. This report described documents seized at Mr Elçi's office, including 68 case files (instead of 67), one of which was an application by Suleyman Kutluk to the European Commission of Human Rights. However, none of the Kurdish or “ERNK” documents mentioned in the preceding seizure report, other than the document entitled “Kurdish-merciless”, were noted. It stated that nothing incriminating was found on Mr Elçi. His personal belongings and all the seized papers were handed over, together with Mr Elçi, to the Cizre district gendarme command on 23 November 1993.
c) Undisputed confiscation record concerning the office materials of Tahir Elçi
486. This record was significantly shorter and stated that files, journals and documents had been confiscated and taken to the District Security Directorate. The report had the same date and times as the foregoing records, and an original version was in the State Security Court file bearing Mr Elçi's signature.
d) Search with consent report concerning Mr Elçi's office
487. This report stated that Mr Elçi's office was searched on 23 November 1993 at 10.30 a.m. with his consent, a large number of documents being seized for further examination. Mr Elçi indicated that no loss or damage had occurred as a result of the search.
e) Search with consent and confiscation report concerning the house of Sebahattim Acar
488. Gendarmes and police officer searched Mr Acar's house on 15 November 1993. The report was made up and signed at 11.30 p.m. It described the seizure of various documents, including those entitled “The paths and tasks of the Turkish Revolution”, “Thoughts on the PKK”, “Kurdistan under fire” and several publications by or concerning Abdullah Öcalan, such as “Facism and the PKK resistance” and “Questions of socialism and revolution”.
f) Undisputed search report of the home of Mehmet Selim Kurbanoğlu
489. The report noted the search of Mr Kurbanoğlu's home on 20 November 1993, during which nothing incriminating was found.
g) Disputed search report of the home of Mehmet Selim Kurbanoğlu
490. The report again recorded the search of Mr Kurbanoğlu's home on 20 November 1993, during which a note was found with an “ERNK” stamp on it.
h) Disputed report on the taking into custody and personal search of Meral Danis Beştaş and Mesut Beştaş
491. The report noted that a Kurdish leaflet entitled “BANG” from the “YRWK” (the intellectuals' wing of the PKK) was found on Meral Danis Beştaş and an “ERNK” document was found on Mesut Beştaş.
i) Disputed report on the taking into custody and personal search of Arif Alltinkalem
492. It was recorded that an “ERNK” receipt was found on Mr Altinkalem.
j) Apprehension and body search report concerning Fuat Hayri Demir
493. The report signed by the applicant and dated 3 December 1993, the day of his apprehension, stated that the applicant was wanted for his connections with the PKK and for acting as a courier. It also recorded that a note bearing an “ERNK” stamp on it and addressed to Comrade Fuat Demir was found. No other incriminating material was discovered.
8. Custody records from the Diyarbakır provincial gendarmerie command
494. The custody records showed that 73 people had been taken into custody by the gendarmerie from 15 November 1993, when Sabahattin Acar was detained, until 11 December 1993 when Mr and Mrs Şahin were noted as having been detained. The records revealed that some 45 people were being held at the same time.
495. To some extent the dates recorded corresponded to those set out in the indictment table (paragraph 534 below), except for the following:
-Tahir Elçi's custody was recorded as of 25 November 1993 (probably the date of his transfer to Diyarbakır from Cizre, where he had been apprehended on 23 November 1993);
-Mr and Mrs Şahin's custody was recorded as of 11 December 1993 (probably the date of their transfer from İstanbul, where they had been apprehended on 7 December 1993);
-Niyazi Çem's custody was recorded as of 28 November 1993 (probably the date of his transfer from İstanbul, where he had been apprehended on 23 November 1993); and
-Mehmet Selim Kurbanoğlu's custody was recorded as of 20 November 1993, although the indictment refers to 19 November 1993.
9. Video recordings of certain interrogations (submitted by the Government on 28 July 1999)
496. The Government submitted two video cassettes showing a four-hour interrogation of a few applicants in November and December 1993.
497. The sound quality of the recordings was poor and in black and white. The location and exact dates were not given. People were filmed in close-up, seated in front of a back-drop of the Turkish flag and an unseen, unidentified man asked questions. There were strong spotlights directed at the interviewee. The people recorded were apparently Şinasi Tur, Baki Demırhan and Hüsniye Ölmez on the first tape, and Selim Kurbanoğlu, Arif Altinkalem and Vedat Erten on the second tape, as well as a deputy prison director and a prison officer.
498. The aforementioned applicants said that they had started out as lawyers who, in the course of their work and in order to earn a living, sometimes had to represent people accused of terrorist, PKK involvement. When visiting such clients in prison, the “head of the political prisoners” systematically sat in on the interview to monitor the conversation and intervene when he thought appropriate. The prison officers stated that they had left the political prisoners to organise themselves in this and other business for fear of reprisals to either themselves or their families.
499. Most of the lawyers recounted that they had not actively collaborated with the PKK or its prison members. However, some of them acknowledged that they had carried notebooks, diaries, pens and the like between prisons from one client to another. They had not inquired as to the reason or the content, knowing that it was in their best interests to remain ignorant, if they wished to continue in legal practice without reprisal from the PKK.
500. Şinasi Tur recounted, inter alia, that his brother had been a member of the PKK who had been killed. He himself had been given 5000 Deutschmarks to buy mobile telephones for a PKK member. He had also prepared some fake identity cards for that organisation.
501. Baki Demırhan said, inter alia, that the Diyarbakır lawyers like himself had been manipulated by the PKK emotionally, politically and economically. He had received instructions from the “head of the political prisoners” at the Gaziantep Prison, and he had carried notes and booklets between prisoners, to and from that prison and the Diyarbakır Prison. The defence lawyers had been instructed to set up human rights commissions within the bar associations.
502. Hüsniye Ölmez stated, inter alia, that after two years of scraping a living as a lawyer in Diyarbakır, she had had to appear as a PKK sympathiser in order to get work. She was recognised as a good lawyer, which is why the Government accused her of being a PKK member. Her family and its considerable wealth had been attacked and intimidated in an attempt to force them to pay “tax” to the PKK. She had come under pressure from the “head of the political prisoners” to act as a courier. She had once taken some belongings out of one of the prisons.
503. Vedat Erten claimed, inter alia, that he had never knowingly or overtly assisted the PKK, and that his law practice had suffered as a result. He had had a few PKK clients.
10. The records of Prosecutor Haney at the State Security Court
504. Mr Haney took statements from the applicants at the end of their detention by the gendarmes. They all rejected the charges against them and the allegations of Abdülhakim Güven, as well as claims that they had been found with incriminating PKK or “ERNK” documents. Those who had signed statements at the gendarmerie said that they had been forced to do so.
505. Şinasi Tur and Sebahattim Acar specified that the severe torture of Mmes Beştaş and Ölmez and MM. Elçi and Çem had scared them into signing.
506. Mr Elçi alleged that he had been tortured, as had Mr Çem and Ms Ölmez. This was confirmed by Mr Çem in his statement to the Prosecutor, who also alleged that Mrs Beştaş had beeen tortured. The latter declared that she had been kept blindfolded in a cell and tortured. MM. Beştaş and Erten alleged they had been tortured, as did Ms Ölmez.
507. Several applicants said they had not been confronted with Mr Güven, one reason being that, as they had been blindfolded, they could not identify anyone who spoke to them. They all repudiated the confrontation records with Mr Güven and / or his statements about them.
11. Record of the applicants' interrogation by Cafer Sadik Ural, the Investigating Judge, on 10 December 1993
a) Baki Demırhan
508. Mr Demırhan refuted the charges read out to him by the Investigating Judge. He had had no relationship with the PKK other than acting as a defence counsel. He had not acted as a courier between prisons (especially Gaziantep prison where he had never set foot). Nor had he brought into prison any knife. At that time lawyers were searched before being admitted into the prison, so carrying in a knife would have been impossible. He knew Abdülhakim Güven, who was angry with Mr Demırhan for dissuading his brother from joining the PKK.
509. Mr Demırhan rejected the statement he had signed under pressure at the gendarmerie and the allegations of Mr Güven against him. He therefore repudiated the confrontation record concerning the latter. He denied having been confronted with him at all.
510. Mr Abbasioğlu rejected the charges read out to him as groundless, as well as his statement to the gendarmes. He denied the accusations of Mr Güven with whom he had been purportedly confronted, but as he had been blindfolded he had not been able to identify him fully. He had been punched at that moment. He had not acted as a courier for him and had only signed the statements because he had been scared by the screams of Tahir Elçi, Meral Daniş Beştaş and Niyazi Çem when they had been tortured for a long time with cold water.
511. He acknowledged the statement he had made to the Public Prosecutor.
512. Mr Beştaş denied the charges read out to him as groundless. He had not acted as a courier or possessed a document stamped by the “ERNK” purportedly found on him. He said that the stamp was not of the usual kind which could be found and that it would have been illogical of him not to have destroyed it at the State Security Court before the end of the day after he had been identified earlier by the officers who were to detain him.
513. He repudiated a preliminary inquiry report dated 6 December 1993 and pointed out how he had tried to record an abstention on that document. This accounted for the difference in signature from the statement he had made to the Public Prosecutor, which statement he confirmed. He also rejected a confrontation record with Mr Güven, given that he had been held blindfolded and had not spoken to anyone.
d) Meral Daniş Beştaş
514. Mrs Beştaş denied the charges, read out to her, of having been a PKK courier and of having been found with an “ERNK” document on her. She repudiated the contents of a preliminary statement, which she had not signed. She alleged she had been in agony for 25 days, having been sexually harassed, stripped naked and doused with cold water for 3 hours. Despite that treatment, she refused to sign any documents.
515. She denied the allegations made by Mr Güven, whose brother she had defended, as she had defended other persons accused of PKK-related crimes. That was her sole contact with the PKK - acting professionally as a defence lawyer.
516. She confirmed the statement she had made to the Public Prosecutor.
517. Mr Kaya denied acting as a PKK courier. He had no relation other than that of lawyer/client with the prison. He repudiated the preliminary statement which he had signed after repression and torture – cold water and sexual harassment. He also rejected the confrontation report with Mr Güven, who had intervened in conversations he had had with his clients, being the prisoners' representative. He confirmed his statement to the Public Prosecutor.
518. Mr Altinkalem denied any relations with the PKK. He denied having been a PKK courier and having been found in possession of an “ERNK” receipt. If he had had a PKK document on him, he would have destroyed it during the day after he had been incorrectly identified as Baki Demırhan. He said that the signature on the arrest and search report was not his. A preliminary statement was taken from him by force, a fact of which he had medical proof. He confirmed his statement to the Public Prosecutor, but not the confrontation record with Mr Güven, as he had been blindfolded and had not recognised the voice of the persons who had spoken to him. Mr Güven was the prisoners' representative and had listened to the conversations between lawyers and their clients. Mr Güven had confirmed that he had never seen or heard of any note, information or PKK comment being transmitted by the applicant.
519. Mr Erten denied acting as a PKK courier and said that he used to get angry when Mr Güven approached him to listen to his conversations with his clients. He disputed Mr Güven's statements against him, the confrontation record and the preliminary statement, which he alleged had been forced from him under torture. He had not had any PKK document on him when apprehended. It would have been irrational to have carried such a document at that time.
h)Mehmet Selim Kurbanoğlu
520. Mr Kurbanoğlu denied assisting the PKK either alone or with his partner, Şinasi Tur. Nothing incriminating had been found on him and allegations that he had held PKK documents were groundless. He had not admitted the police officers to his home when they first arrived, and any such document would have been destroyed while the police waited outside. The house search report should also have had his cousin's signature on it. His signature on the arrest report and preliminary statement were made under pressure. He confirmed his statement to the Public Prosecutor.
521. Mr Acar denied the charges against him and alleged that he had been subjected to repression and torture during his detention, together with Tahir Elçi, Niyazi Çem, Meral Daniş Beştaş and Hüsniye Ölmez. He had been stripped naked and beaten, whereas cold water had been poured on Tahir Elçi and Niyazi Çem. After seeing that, he had signed whatever was required in order to avoid aggravating a kidney problem he had.
522. His preliminary statement was taken by force. He denied any involvement in bringing cyanide into prison, as alleged by Mr Güven. He also denied that he had acted as a courier and that PKK documents were found during the search of his house. They had been attached to the file after the search had been made. He acknowledged a photograph of himself and his nephew, who was wearing a tie in PKK colours.
523. He had been working on files for the Human Rights Association between 1990 and 1992, which documents were seized, and following which he was victimised.
j)Fuat Hayri Demır
524. Mr Demır denied acting as a PKK courier, passing money, or the like. He claimed that no PKK documents had been found on him. As he was aware of the arrest of his friends earlier, it would have been irrational of him to carry around such documents.
525. He alleged that he had signed the preliminary statement after electric shock torture. He disputed Mr Güven's allegations, which he may have made because Mr Demır had tried to prevent him interfering in his discussions with his clients in prison.
526. He confirmed the statement he had made to the Public Prosecutor.
527. Mr Tur denied the new charges against him of having acted as a courier and of having harboured a PKK member at his brother-in-law's house. He said that Mr Güven's allegations were groundless.
528. Mr Elçi denied the charges against him and any allegation that “ERNK” or illegal documents had been found in his office or house. He denied the preliminary statement and confrontation record with Mr Güven, both of which he had refused to sign. Mr Güven's only relation to him was as a neighbour. A faxed arrest report did not have his authentic signature on it. He confirmed the statement he had made to the Public Prosecutor.
m) Niyazi Çem
529. Mr Çem denied having acted as a courier for the PKK, having accompanied a PKK member by aeroplane and having transmitted money to Mr Güven. He repudiated the preliminary statement and the confrontation record with Mr Güven, which he had not signed. He confirmed his statement to the Public Prosecutor.
530. Ms Ölmez denied the contents of the preliminary statement which she was ashamed to say had been extracted from her under torture, including being stripped naked, sexually harassed and beaten while being doused with cold water. She also refuted the statements of Mr Güven and Fatima Demirel. (Ms Demirel had retracted her incriminating statement against the applicant later - paragraph 533 below.) Ms Ölmez had been a lawyer for 20 years and had not plotted with the PKK. Mr Güven had been a prisoners' representative and had given statements in order to benefit from the Remorse Law. She confirmed her statement to the Public Prosecutor and denied the slanderous allegation that she had hidden heroin.
o) The Court's decision
531. In conclusion, the Investigating Judge decided to remand in custody Sabahattin Acar, Tahir Elçi and Hüsniye Ölmez under Article 104 of the Code of Criminal Procedure; to release Bakir Demırhan, Gazanfer Abbasioğlu, Mesut Beştaş, Meral Daniş Beştaş, Nevzat Kaya, Arif Altinkalem, Vedat Erten, Mehmet Selim Kurbanoğlu, Sabahattin Acar, Fuat Hayri Demır, Şinasi Tur, Tahir Elçi, Niyazi Çem and Hüsniye Ölmez “having regard to the characteristics of the offence and the existing evidence”; and to release pending trial Mesut Beştaş, Meral Daniş Beştaş, Arif Altinkalem, Mehmet Selim Kurbanoğlu, and Fuat Hayri Demır “considering the date of their arrest, the evidence, the characteristics of the offence, and that the fact that their residence is known”.
12. Other third party statements
a) Statement of Abdülhakim Bakir on 17 March 1993
532. Mr Bakir, a PKK confessor like Mr Güven, described how poison and a flick knife had been smuggled into prison in January 1993 by a certain A.K.
b) Evidence given by Fatma Demirel to the Diyabakır State Security Court on 22 November 1994
533. Ms Demirel said that she had heard of Hüsniye Ölmez and Meral Daniş Beştaş but that she had never met them. She repudiated the statements she had given in custody, particularly the allegations regarding these two lawyers, which had been written by the interrogators and which she had been forced to sign.
13. The indictment issued on 22 December 1993 against the applicants
534. The indictment dated 22 December 1993 and drawn up by Prosecutor Ünal Haney first listed 19 defendants (excluding MM. Tur and Çem), and then proceeded to elaborate the alleged offences of a total of 23 defendants, including all the applicants. It gave the following dates as regards the applicants' custody and formal arrest:
Date of being taken into custody
Date of formal arrest - “fa”; with or without a mention of remand in custody - “ric”; or the date when an arrest warrantwas issued - “aw”
fa 10.12.93 (ric)
fa 21.12.93 (ric)
fa 21.12.93 (ric)
fa 10.12.93 (ric)
Mehmet Selim Kurbanoğlu
aw 14.12.93; fa 20.12.93 (ric)
Meral Daniş Beştaş
aw 14.12.93; fa 15.12.93 (ric)
aw 14.12.93; fa 15.12.93 (ric)
16.11.93 - 10.12.93
Mehmet Arif Altinkalem
Fuat Hayri Demır
03.12.93 - 10.12.93
fa 10.12.93 (ric)
535. All the applicants were charged generally with “being subsidiary persons of an illegal organisation”, i.e. the PKK. Specific allegations relating to this charge were set out in each case, ranging from providing free or cheap legal representation to PKK members, acting as couriers, handling weapons and drugs, making financial donations, organising propaganda, etc. In the case of İmam Şahin, it was alleged, inter alia, that he had “prepared documentation showing the PKK as innocent, stating that the incidents in the region occurred with the support of the State, belittling the State and ...that [he had] faxed these to Europe and made propaganda against [the State]”. Arzu Şahin and Baki Demırhan were similarly accused of belittling the Turkish State in documentation which they had allegedly sent to European human rights associations. Sebahattin Acar, a member of the Diyarbakır Human Rights Association (the “IHD”), was accused of sending such anti-Turkish propaganda to the IHD in Europe.
536. The indictment required that all the defendants
“be tried according to the rules of Law No. 2845, penalised severely under Articles 168/2, 31, 33 and 40 of the Turkish Criminal Code, and 5 of Law No. 3713, and that the offending articles recorded as being in safe-keeping be confiscated.”
14. Records of the Diyarbakır State Security Court
537. The records submitted in the case showed that, on 10 January 1993 (read 1994), Tahir Elçi's lawyer asked that documents be returned. That same day the Diyarbakır State Security Court ordered their return, and the lawyer, Mr Dinler, signed a receipt which included a reference to a file (No. 72.1) containing documents concerning “the Human Rights Commission”.
538. At the hearing on 17 February 1994 before the court, all the applicants, except for Vedat Erten and Arif Altinkalem, complained of having been tortured, ill-treated or subjected to undue pressure during gendarme/police custody. Vedat Erten and Arif Altinkalem, as well as some of the other applicants, had already made such complaints to the Investigating Judge on 10 December 1993. Arif Altinkalem referred to such treatment at the hearing before the State Security Court on 28 April 1994.
539. Some of the applicants who had been remanded in custody - Tahir Elçi, Sabahattin Acar, Mehmet Selim Kurbanoğlu, Mesut Beştaş, Vedat Erten, Arif Altinkalem, Hüsniye Ölmez, İmam Şahin and Arzu Şahin - submitted a joint statement of defence to the court on 17 February 1994 and requested their release, which was granted. In their statements they denounced, inter alia, the lack of evidence against them, unlawful interrogation methods, which had led some of them to sign fabricated confession statements, and fabricated search reports by gendarmes in which it was falsely alleged that certain PKK documents had been found on them.
540. Mehmet Selim Kurbanoğlu lodged a defence statement with the court on 20 January 1997 in which, inter alia, he denounced the absence of evidence against him and disputed a fabricated search report of his home (paragraph 490 above) in which a note with an “ERNK” stamp on it had purportedly been found. He alleged that his statement to the gendarmes had been extracted under torture, contrary to Article 135a of the Code of Criminal Procedure, and that the whole case was based on an intolerance of defence lawyers before the court.
541. Vedat Erten lodged a separate objection to his arrest, detention and remand in custody with the State Security Court Prosecutor for submission to that court, and requested bail. He alleged, inter alia, that he had been treated shamefully in the custody of the gendarmes for 18 days (17 days according to official records), being interrogated with illegal and inhuman practices which led him to sign documents, the contents of which he repudiated. Despite the general awareness of the round-up of the Diyarbakır lawyers at that time, strangely enough all of them were purportedly found with compromising documents on them.
542. The Diyarbakır provincial gendarmerie commander submitted to the State Security Court a global statement which included, inter alia, the following elements:
- Tahir Elçi had been in contact with PKK members in the mountains, providing them with weapons, and had liaised between Cizre and Diyarbakır;
- Nevzat Kaya confessed to being a PKK courier and had procured clothing which he had given to Mr Güven, as well as two micro-tapes;
- Şinasi Tur had confessed to being a PKK courier, and had harboured an injured PKK member and, when he died, helped in the disposal of the body;
- a note had been sent by the “YRWK” (the intellectuals' wing of the PKK) which had been found on Sabahattin Acar;
- Niyazi Çem had been a courier and had transported heroin for a PKK member to İstanbul;
- Mehmet Selim Kurbanoğlu acknowledged his involvement as a PKK courier and regional representative, and in the disposal of the body of a deceased PKK member;
- Meral Danis Beştaş admitted that she was a PKK courier, and had faxed PKK materials to Europe through the Human Rights Association which had defamed the Turkish State; she had given information to the PKK about a particular Public Prosecutor whom it was planned to assassinate and had been found in possession of a “YWRK” document called “BANG”;
- Mesut Beştaş had confessed to being a courier; he had defended PKK members, had had a PKK note on him when apprehended and had sent PKK people to the mountains;
- Vedat Erten had been a PKK courier and had been found with a note on him from a prisoner;
- Baki Demırhan had admitted that he was a PKK courier and that he had tried to smuggle a flick knife into prison;
- Arif Altinkalem had said that he was a PKK courier and had been found with a receipt from the “ERNK” and a PKK photograph;
- Gazanfer Abbasioğlu admitted that he was a PKK courier, and had given information to the PKK about a particular Public Prosecutor whom it was planned to assassinate;
- Fuat Hayri Demır was a PKK courier who had established connections between the Tunceli Human Rights Assocation and the prison there; he had been arrested with a PKK note on him; and
- Hüsniye Ölmez had said that she was a PKK courier; she had kept 2 kilos of heroin for the PKK at her home, had been planning to help an imprisoned PKK member sell his personal property, and had proposed that a Diyarbakır Public Prosecutor be killed; a PKK report had been found on her and the address book of another suspect in the case had been found at her home.
543. The commander also submitted to the court the video recordings that had been made of the applicants' interrogations, their statements, as well as that of Mr Güven, the PKK documents purportedly found on the accused and a weapon.
544. After the hearings on 17 February and 28 April 1994, the State Security Court took certain procedural decisions, although none related to the allegations of torture, ill-treatment or undue pressure.
545. Records of the hearing of the State Security Court dated 17 September and 7 November 1996, 21 January, 8 April, 16 June, 16 September, 4 November and 23 December 1997, and 3 March, 21 April and 9 June 1998, were submitted to the Commission. They showed constant adjournments and certain procedural decisions, with the case eventually being stalled due to the non-appearance of certain key witnesses, especially Abdülhakim Güven whose address was unknown.
a)Medical examination of İmam Şahin and Arzu Şahin, 10 December 1993
546. Following their apprehension on 7 December 1993, Mr and Mrs Şahin were taken by the police to an İstanbul medical institute on 10 December 1993 which certified that they were fit.
b) Medical report by Dr Lokman Eğilmez, dated 10 December 1993 at 7.30 a.m.
547. Dr Eğilmez, in a one page collective report, certified that the applicants showed “no marks of blows or force”, except for Mr Altinkalem who had a small, violet coloured bruise on the outer side of his right knee.
c)Further medical report by Dr Lokman Eğilmez of Hüsniye Ölmez at her request on 13 December 1993
548. Dr Eğilmez noted two faded, green bruises, 1 cm in diameter on the left side and lower part of her knee.
d)Medical report of Dr Mahmut Demirel dated 13 December 1993 of Meral Daniş Beştaş
549. Dr Demirel diagnosed that Mrs Beştaş was suffering from pneumonia and recommended 15 days' bed rest.
e) The medical opinion of Dr C.M. Milroy, Senior Lecturer in Forensic Pathology at Sheffield University [GB] (document dated 11 November 1998, submitted by the applicants' representatives)
550. In the context of the cases of Tahir Elçi, Niyazi Çem, Şinasi Tur, Sabahattin Acar, Selim Kurbanoğlu, Meral Daniş Beştaş, Mesut Beştaş, Vedat Erten and Hüsniye Ölmez, Dr Milroy commented on the medical procedures for the examination of detainees.
551. Much of the treatment alleged by the applicants (blindfolding, being spread-eagled, being subjected to continuous loud music, death threats, slapping or being stripped naked and doused with cold water) would not leave any external physical signs. However, the cold water treatment could result in hypothermia and pneumonia.
552. General beating may lead to bruising and a meagre diet would lead to weight loss, hence the need to record a prisoner's weight at the start and at the end of the detention period. A general assessment of the patient's physical condition would also provide evidence of the prisoner's nutritional status.
553. As regards Meral Daniş Beştaş, the findings of Dr Mahmut Demirel (paragraphs 296-298 and 549 above) on 13 December 1993 were consistent with the allegations of being stripped naked and doused with cold water, resulting in hypothermia, complicated by pneumonia.
16. Extracts from or summaries of general documentation submitted by the applicants
a) Diyarbakır Bar Association Report 1997
554. The report denounced the murder of several members of the Diyarbakır Bar between 1993 and 1995 by unknown perpetrators. Because of the state of war prevailing in the region at that time, most of the lawyers sided with the victims of violated rights. Lawyers were unlawfully detained, tortured, arrested and prosecuted on the basis of fabricated evidence. Some of the lawyers were convicted of offences. Others' trials were still pending. The applicants' “collective case” was referred to.
b) The opinion of Mehmet Nur Terzi, an Izmir lawyer, on Articles 58 and 59 of Law No. 1136 on Advocates
555. Mr Terzi confirmed the opinion of Prosecutor Ünal Haney that the protection afforded to lawyers as to their arrest, detention and interrogation (requiring the authority and / or presence of a Public Prosecutor) was overridden at the time by Law No. 2845 on the establishment and judicial practice of the State Security Courts in respect of suspected terrorist offences (see paragraph 363 above). The rationale for this was that crimes which fell within the remit of the State Security Courts were crimes against the State and therefore could have nothing to do with lawyers' professional duties, and were personal crimes.
556. However, circulars issued by the Ministry of Justice affirmed that such cases should still be investigated by the State Prosecutors, not the security forces. The fact that these compulsory directives were not followed in certain provinces led to a protest from many legal institutions, particularly the Bar Associations.
c) Extracts from the official Susurluk report on unknown perpetrator killings
557. Reference was made in this report to a certain Mahmut Yıldırım (code name “Yeşil”) who at one time was assigned to the Diyarbakır gendarmerie command. He was responsible for several murders of PKK members, the extortion of money and illegal interrogations which, if unsuccessful, resulted in the disappearance of the person concerned. In effect, he led a “death squad”, which went unpunished.
d) Statement of the Minister of Justice, Mr Kazan, reported in the daily newspaper “Sabah” on 14 November 1996, concerning the allegedly unethical practices of certain lawyers
558. The Minister was reported as saying that around 300 lawyers within the Diyarbakır Human Rights Association, receiving money from abroad, had been contacting citizens in the Emergency Rule Region and convincing them to sign and finger print blank sheets of paper.
e) Extract of the report dated 7 November 1996 by the Lawyers' Committee (USA) on an exchange with the Chief State Security Court Prosecutor, Bekir Selçuk
559. Mr Selçuk was reported as saying, as regards incommunicado detention in contravention of international norms, “I have my own objectives, and if the European Convention conflicts with them, it must take second place.”
f) Preliminary report of a European Lawyer's Committee for Human Rights dated 7 November 1996
560. Members of this Committee held a 16-day inquiry in Turkey in 1996, out of concern for allegations of hostility from the Turkish authorities to Turkish lawyers engaged in the promotion of human rights. The pressures on lawyers were such that very few practitioners were prepared to take on State Security Court cases, particularly in the South East of the country. Nezmattullah Gündüz, a former President of the Diyarbakır Bar Association told the Committee that, “No one can fulfil his duties as a lawyer in these cases... The work is a kind of slow suicide”.
561. In contrast, in two interviews with the Diyarbakır Chief State Security Prosecutor, Bekir Selçuk, the latter maintained that there were no cases where lawyers had been prosecuted for defending terrorists. Rather they were prosecuted for having organic links with the PKK. In no way were lawyers sanctioned for their contacts with the European Commission of Human Rights.
562. The Committee expressed concern about the practice of prolonged incommunicado pre-trial detention in State Security Court proceedings. Such detention was devoid of essential safeguards, in particular prompt access to legal advice and judicial supervision of the detention of suspects and, thus, there was an enhanced possibility of torture with impunity.
g) The Report of the United Nations Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1993
563. This report referred to allegations that no judicial or disciplinary proceedings appeared to have been taken against officials accused of unlawful practices, and listed examples of pressure being brought to bear on doctors to issue misleading reports and to note complaints perfunctorily if any investigations into such matters were commenced.
h) The United Nations Statement of the Basic Principles on the Role of Lawyers, adopted by consensus by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders on 7 September 1990
564. The applicants referred to several of the basic principles set out in this Statement:
- that lawyers, in protecting their clients' rights, shall seek to uphold human rights, should be able to act freely and diligently, in accordance with the law and professional ethics;
- that Governments should ensure that lawyers may exercise their profession without hindrance, intimidation or sanction;
- that lawyers should not be identified with the clients they defend;
- that lawyers should enjoy civil and criminal immunity for all statements they make in good faith; and
- that the lawyer/client relationship, correspondence and consultation should be confidential.
i) Report on the arrest of defence lawyers in Turkey by Jon Rud for the Norwegian Bar Association (26 April to 1 May 1994)
565. Mr Rud was looking into the allegations in the present case. In a meeting with the Chief State Security Court Prosecutor, Bekir Selçuk, he reported the latter as saying that he was aware of the applicants' complaints of torture, which had not been submitted to the proper authorities and were a classic defence tactic. When apparently asked why complaints to the European Commission of Human Rights featured in the indictment against the applicants, Mr Selçuk replied that the right of appeal to the Commission had been abused, which was an offence under Turkish law, being propaganda directed against the State, belittling Turkey. The lawyers had not exhausted domestic remedies and were making false allegations. Lawyers should examine their clients' cases more carefully before submitting unwarranted claims simply on the clients' instructions.
j) Amnesty International Urgent Action Communiqués, dated 19 and 24 November 1993, 9 and 17 December 1993 and 25 January 1994
566. The communiqués referred to the applicants' arrest and detention as they evolved. That of 17 December 1993 recorded the allegations of Meral Daniş Beştaş of having been tortured whilst in the custody of the gendarmerie. That of 25 January 1994 recorded the similar allegations of Tahir Elçi and Sabahattin Acar.
k) Amnesty International Report on Turkey - Human Rights Defenders at risk, dated September 1994
567. Amnesty International took up the allegations of the Turkish Human Rights Association concerning the harassment and prosecution of defence lawyers. Meral Daniş Beştaş was recorded as having complained of her detention by the gendarmerie in November 1993, and of torture and severe ill-treatment, including being doused with cold water.
II. RELEVANT DOMESTIC LAW AND PRACTICE
568. The Court refers below to the submissions of the parties regarding the pertinent domestic law in force at the relevant time, especially their translations of various texts, as well as to the various summaries of domestic law set out in previous jugments (see e.g. the judgment dated 27 June 2000 in the case of Salman v. Turkey [GC], no. 21986/93, §§ 60-68, ECHR 2000-VII).
A. Arrest and custody
569. Article 104 of the Code of Criminal Procedure provided that a person could be remanded in custody where there was a fear that the accused would abscond, or there were attempts by the accused to remove evidence or interfere with witnesses, or where the offence was against public morals, the security of the public or the authority of the State or Government. When the offence was a felony, it was presumed that the suspect was planning to escape.
570. In the State of Emergency region at the material time, Article 26 of Law No. 2935 of 25 October 1983 permitted the detention of a person, in relation to terrorist offences to be tried by the State Security Court, for a period of 4 days in the case of individual offences, and 30 days for collective offences, as in the present case.
B. Terrorist offences
571. Terrorism was defined in Article 1 of the Law No. 3713 on the Prevention of Terrorism (1991) as follows:
“Terrorism is any kind of act done by one or more persons belonging to an organisation with the aim of changing the characteristics of the Republic as specified in the Constitution, its political, legal, social, secular and economic system, damaging the indivisible unity of the State with its territory and nation, endangering the existence of the Turkish State and Republic, weakening or destroying or seizing the authority of the State, eliminating fundamental rights and freedoms, or damaging the internal or external security of the State, public order or general health by means of pressure, force and violence, terror, intimidation, oppression or threat.”
572. Article 168 of the Turkish Criminal Code provided as follows:
“Whoever establishes armed organisations or bands or undertakes the duty of chief or command or any particular duty in such organisations or bands, with the purpose of committing the felonies defined in Articles 125, 131, 146, 147, 149 and 156, shall be punished by heavy imprisonment for not less than 10 years.”
573. Article 169 of the Turkish Criminal Code provided as follows:
“Whoever in circumstances other than those prescribed in Articles 64 and 65, knowingly gives shelter, assistance, provisions, arms or ammunition to [a terrorist] organisation or band or facilitates their actions shall be punished by heavy imprisonment from 3 to 5 years.”
The offences in Articles 168 and 169 were deemed terrorist crimes under Article 3 of the Prevention of Terrorism Law 1991, Article 5 of which increased by one half any punishment imposed (see the judgment of 23 September 1998 in Demir and Others v. Turkey, Reports of Judgments and decisions 1998-VI, §§ 19-20). Proceedings could be suspended and subsequently dropped if no crime of the same or more serious kind was committed by the offender within a five year period (Law No. 4616 on conditional release, the suspension of proceedings or the execution of sentences in respect of crimes committed before 23 April 1999).
C. Interrogations and statements
574. Reflecting Article 17 of the Constitution, Article 135(a) of the Code of Criminal Procedure (as amended in 1992 by Law No. 3842) required that an accused's testimony be given of his/her own free will and that anything obstructing this freedom would be illegal and render the testimony invalid. (Law No. 4449, which came into force on 26 August 1999, increased the penalties for such acts.)
575. The Turkish Criminal Code made it a criminal offence:
– to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants);
– to issue threats (Article 191); or
– to subject an individual to torture or ill-treatment (Articles 243 and 245).
576. The authorities' obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that had been brought to their attention were governed by Articles 151 to 153 of the Code of Criminal Procedure. Offences could be reported to the authorities or the security forces, as well as to Public Prosecutors. The complaint could be made in writing or orally. If it were made orally, the authority had to record it (Article 151).
577. A Public Prosecutor who was informed by any means whatsoever of a situation that gave rise to the suspicion that an offence had been committed was obliged to investigate the facts in order to decide whether or not there should be a prosecution (Article 153 of the Code of Criminal Procedure).
578. In the case of alleged terrorist offences, the Public Prosecutor was deprived of jurisdiction in favour of a separate system of State Security Prosecutors and courts established throughout Turkey.
579. If the suspected offender was a civil servant and if the offence was committed during the performance of his duties, the preliminary investigation of the case was governed by the Law of 1914 on the prosecution of civil servants, which restricted the Public Prosecutor's jurisdiction ratione personae at that stage of the proceedings. In such cases it was for the relevant local administrative council (for the district or province, depending on the suspect's status) to conduct the preliminary investigation and, consequently, to decide whether to prosecute. Once a decision to prosecute had been taken, it was for the Public Prosecutor to investigate the case. According to Article 4 (e) of Decree No. 285, complaints against officers who were subject to the authority of the State of Emergency Provincial Governor were to be dealt with under the same procedure.
580. An appeal to the Supreme Administrative Court lay against a decision of the Council. If a decision not to prosecute was taken, the case was automatically referred to that court.
581. By virtue of Article 4, paragraph (i), of Legislative Decree No. 285 of 10 July 1987 on the authority of the Governor of a state of emergency region, the aforementioned 1914 Law also applied to members of the security forces who came under the Governor's authority.
D. Search and seizure
582. Article 11 of the Law on the State of Emergency and Article 3 of Decree No. 430 set out the terms and conditions for search and seizure in the state of emergency region as follows:
“Measures to be taken in cases of violent acts - Article 11
In times of state of emergency declared in accordance with Article 3 § 1 (b) of this law, the following measures can be taken, in addition to those set out in Article 9, in order to maintain general security and public order and to prevent the spreading of acts of violence : ...
c) to conduct a search of persons, their cars and materials and to seize the incriminating materials to be found which constitute evidence, ...”
“Article 3:- In the provinces which are under the state of emergency ...
d) [The state of emergency Regional Governor], at the request of the security forces or on his own motion, where delay is deemed prejudicial, can order the conduct of general searches on roads and in residential neighbourhoods. [He is empowered to order] the conduct of searches in houses, offices and their annexes belonging to persons and corporate bodies, as well as in places which are not open to the public.”
583. Articles 90 to 97 of the Code of Criminal Procedure set out the general terms which governed such measures elsewhere, whereby it was a Judge or Public Prosecutor who could authorise seizures. In particular, Article 97 empowered Public Prosecutors and the police to conduct searches where delay was deemed prejudicial, for which judicial confirmation was required within three days of the measures being taken (Article 90). Appeals against irregularities were provided by Articles 307 and 308 of the Code of Criminal Procedure. Moreover, Articles 193 and 194 of the Criminal Code made it a criminal offence to unlawfully search an individual's home.
E. Investigation into the activities of lawyers
584. Law No. 1136 on Advocates provided that inquiries about advocates for offences committed as a result of or during their work should be carried out by the State Prosecutor of the place where the offence was committed, after permission had been given by the Ministry of Justice (Article 58). A file concerning an inquiry carried out pursuant to Article 58 of this Law was assigned to the Criminal Affairs General Directorate of the Ministry of Justice. In case it was deemed necessary to institute proceedings, the file would be sent to the State Prosecutor for Serious Penalties, at the Serious Penalty Court nearest to the place where the offence had been committed. Those courts held the hearing of the lawyers concerned (Article 59).
585. Since 1983, Article 9 of Law No. 2845 on the establishment and judicial practice of the State Security Courts dispensed with the requirement of ministerial authorisation, leaving the State Security Court Prosecutors with direct authority to investigate suspect lawyers.
586. However, a circular from the Ministry of Justice dated 14 February 1994 urgently reminded the prosecution authorities that Article 58 of Law No. 1136 on Advocates, and earlier ministerial directives, required that inquiries relating to lawyers were to be performed directly by Public Prosecutors even in matters of “individual offences” (i.e. outside their professional activities). They could not be left to law enforcement officers.
F. The role of the Convention in domestic law
587. Article 90 of the Constitution provided a constitutional right to complain to the Convention organs. Moreover, Article 36 of the Constitution safeguarded the right to put claims before a competent review body, which provision included the right of individual petition under the Convention.
588. The Convention prevailed over incompatible domestic law.
G. The Turkish Government's Derogation under Article 15 of the Convention and Decrees Nos. 424, 425 and 430
589. The summary of the Derogation of 6 August 1990 and resultant Decrees, provided by the Government in several cases before the Convention organs, can be found in the aforementioned Demir and Others v. Turkey judgment (§§ 24-20). The Derogation refers to the terrorist threat to national security in South East Turkey and to the additional powers afforded by Decrees Nos. 424 and 425 to the Governor of the state of emergency region to meet that threat as regards the print media, residential prohibitions, labour disputes, looting, the evacuation of villages, the transfer of undesirable civil servants, and any official's immunity from suit in the exercise of those additional powers. Decree 430, promulgated on 16 December 1990, created certain safeguards in the exercise of those powers, including a right to sue the State for loss or damages arising out of emergency measures. On 12 May 1992 the Permanent Representative of Turkey wrote to the Secretary General of the Council of Europe, limiting the effect of the Derogation to questions arising under Article 5 of the Convention.
H. Civil and administrative liability arising out of criminal offences
590. Under Article 13 of Law No. 2577 on Judicial Administrative Procedure, anyone who sustained damage as a result of an act by the authorities could, within one year after the alleged act was committed, claim compensation from them. If the claim was rejected in whole or in part, or if no reply was received within sixty days, the victim could bring administrative proceedings.
591. Article 125 §§ 1 and 7 of the Constitution provided:
“All acts or decisions of the authorities are subject to judicial review...
The authorities shall be liable to make reparation for all damage caused by their acts or measures.”
592. That provision established the State's strict liability, which came into play if it were shown that, in the circumstances of a particular case, the State had failed in its obligation to maintain public order, ensure public safety or protect people's lives or property, without it being necessary to show a tortious act attributable to the authorities. Under these rules, the authorities could therefore be held liable to compensate anyone who had sustained loss as a result of acts committed by unidentified persons.
593. Article 8 of Legislative Decree No. 430 of 16 December 1990 provided:
“No criminal, financial or legal liability may be asserted against ... the Governor of a state of emergency region or Provincial Governors in that region in respect of decisions taken, or acts performed by them in the exercise of the powers conferred on them by this legislative decree, and no application shall be made to any judicial authority to that end. This is without prejudice to the rights of individuals to claim reparation from the State for damage which they have been caused without justification.”
594. Under the Code of Obligations, anyone who suffered damage as a result of an illegal or tortious act could bring an action for damages (Articles 41 to 46) and non-pecuniary loss (Article 47). The civil courts were not bound by either the findings or the verdict of the criminal court on the issue of the defendant's guilt (Article 53).
595. However, under Article 13 of Law No. 657 on State Employees, anyone who had sustained loss as a result of an act done in the performance of duties governed by public law could, in principle, only bring an action against the authority by whom the civil servant concerned was employed and not directly against the civil servant (see Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Obligations). That was not, however, an absolute rule. When an act was found to be illegal or tortious and, consequently, was no longer an “administrative act” or deed, the civil courts could allow a claim for damages to be made against the official concerned, without prejudice to the victim's right to bring an action against the authority on the basis of its joint liability as the official's employer (Article 50 of the Code of Obligations).
III. RELEVANT INTERNATIONAL MATERIAL
596. The European Committee for the Prevention of Torture (the “CPT”) carried out seven visits to Turkey between 1990 and 1997 in response to the considerable number of reports received from a variety of sources containing allegations of torture or other forms of ill-treatment of persons deprived of their liberty, in particular, those held in police custody. The CPT issued two public statements during this period.
597. In its public statement adopted on 15 December 1992, the CPT concluded that torture and other forms of severe ill-treatment were important characteristics of police custody. On its first visit in 1990, hosing with pressurised cold water was amongst the types of ill-treatment constantly alleged. Its medical examinations disclosed clear evidence consistent with very recent torture and other severe ill-treatment of both a physical and psychological nature. The on-site observations in police establishments revealed extremely poor material conditions of detention.
598. On its second visit in 1991, it found that no progress had been made in eliminating torture and ill-treatment by the police. Many persons complained of similar types of ill-treatment. Once again, a number of the persons making such claims were found on examination to display marks or conditions consistent with their allegations. On its third visit, from 22 November to 3 December 1992, its delegation was inundated with allegations of torture and ill-treatment. Numerous persons examined by its doctors displayed marks or conditions consistent with their allegations. It listed a number of these cases. At the headquarters of the Ankara and Diyarbakır Security Directorates, it found equipment that could have been used for torture and the presence of which had no other credible explanation. The CPT concluded in its statement that “the practice of torture and other forms of severe ill-treatment of persons in police custody remains widespread in Turkey”.
599. In its second public statement, issued on 6 December 1996, the CPT noted that some progress had been made over the intervening four years. However, its findings after its visit in 1994 demonstrated that torture and other forms of ill-treatment were still important characteristics of police custody. In the course of visits in 1996, CPT delegations once again found clear evidence of the practice of torture and other forms of severe ill-treatment by the police. It referred to its most recent visit in September 1996 to police establishments. It noted the cases of seven persons who had been very recently detained at the headquarters of the anti-terrorism branch of the Istanbul Security Directorate and which ranked among the most flagrant examples of torture encountered by CPT delegations in Turkey. It concluded that resort to torture and other forms of severe ill-treatment remained a common occurrence in police establishments in Turkey.
I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
600. The Government contended that the applicants had failed to exhaust the remedies available to them under constitutional, criminal, civil and administrative law, of which remedies they were fully aware as they were all practising lawyers. Their failure to do so undermined the Court's subsidiary protection role. The Government noted that this submission had previously been rejected by the Commission, which they alleged had developed a special exhaustion theory with regard to Turkey alone.
601. The Government submitted that the Court should now dismiss the present case for non-exhaustion of domestic remedies.
602. Alternatively, the Government contended that the applicants' complaints under Articles 3, 5 and 8 of the Convention, Article 1 of Protocol No.1 and former Article 25 of the Convention were anyway groundless. They therefore requested the Court to review the Commission's decision on admissibility (former Article 29 of the Convention, now Article 35 § 4) in the present case, and decide that the applications were manifestly ill-founded or that no violation of the Convention be found.
603. The applicants relied on the text of the Commission's decision on admissibility of 2 December 1996 to reject the Government's plea of non-exhaustion of domestic remedies. The applicants had complained to the Public Prosecutor, the Investigating Judge and the State Security Court, but their complaints were not taken up or investigated. The evidence from Government witnesses to the Delegates confirmed the practice of the authorities to dismiss all allegations of misconduct on the part of the security forces. No effective remedy was identified by the Government in relation to the applicants' complaints. The applicants also refuted the Government's plea that their claims were groundless.
604. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see the Aksoy v. Turkey judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, pp. 2275-76, §§ 51-52; the Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996-IV, p. 1210, §§ 65-67; Şarli v. Turkey, judgment of 22 May 2001, no. 24490/94, § 59).
605. The Court emphasises that the application of the rule of exhaustion of domestic remedies must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting States have agreed to establish. Accordingly, it has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual cases. This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the personal circumstances of the applicants. It must then examine whether, in all the circumstances of the case, the applicants did everything that could reasonably be expected of them to exhaust domestic remedies (cf. the above cited judgments: Akdivar and Others v. Turkey, p. 1211, § 69; Aksoy v. Turkey, p. 2276, §§ 53 and 54; Şarli v. Turkey, § 60).
606. The Court notes that Turkish law provided administrative, civil and criminal remedies against illegal and criminal acts attributable to the State or its agents (see paragraphs 574-581, 583, 587-588 and 590-595 above). However, it also observes that the applicants put their complaints clearly to Prosecutor Haney (paragraphs 504-507 above), Judge Ural (paragraphs 508-530 above) and the State Security Court (paragraphs 538-541 above). Yet none of these authorities investigated the applicants' allegations. The Court recalls the Commission's decision on admissibility of 2 December 1996 and its comment that “it should have been a matter of considerable concern to the judicial authorities that a large number of lawyers - members of the Bar - complained of having been subjected, almost at the same time, to such [ill-treatment] during their detention.”
607. In these circumstances, the Court considers that the applicants were not required to embark on other attempts to obtain redress, such as damage or compensation claims under administrative or civil law (cf. Assenov and others v. Bulgaria, judgment of 28 October 1998, Reports 1998-VIII, p. 3286, § 86).
608. Consequently, the Court rejects the Government's preliminary objection of non-exhaustion.
609. As to the Government's plea that the case is manifestly ill-founded, the Court finds no basis in the evidence presented on which to review further the Commission's decision or now reject the application under Article 35 § 4 of the Convention in fine. It will consider these arguments of the Government as being addressed to the merits of the case and to the question whether there has been a violation of the Convention in the present case.
610. Accordingly, the Court rejects the Government's preliminary objections as to the admissibility of the applications.
II.ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
A. Submissions of the parties
1. The applicants
611. Nine of the applicants contended that they had suffered ill-treatment contrary to Article 3 of the Convention, which provides as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
612. Mr Elçi claimed that he had been subjected to torture, and inhuman and degrading treatment both in Cizre and Diyarbakır, including being doused with cold water, threatened with death and subjected to beatings. Mr Tur alleged that he was subjected to beatings, insults and death threats. Mr Acar averred that he was punched, blindfolded, insulted, kicked, slapped, beaten and put in extreme fear for his health. Mr Çem claimed that he had suffered the same kind of ill-treatment as Mr Elçi. Mr Kurbanoğlu stated that he had been humiliated and beaten. Hüsniye Ölmez alleged that she had been tortured, as confirmed by other applicants. Meral Daniş Beştaş claimed that she had been tortured, as a result of which she had contracted pneumonia. Both women had medical evidence in support of their allegations. The women were particularly distressed by the lack of clothing, and washing and toilet facilities. Mesut Beştaş averred that he had been ill-treated with beatings and psychological stress by threats to his wife; he also alleged that he had contracted pneumonia in detention. Mr Erten alleged that he was kicked and slapped, and had been terrified by the others' screams.
613. The applicants contended that this kind of ill-treatment would not necessarily leave significant physical marks. Furthermore, the collective certificate by Dr Eğilmez could not be deemed determinative (cf. United Nations Report, paragraph 563 above).
614. All the applicants were kept in appalling, overcrowded conditions, with little bread and water. It was freezing cold. There were inadequate bedding, washing and toilet facilities and clothing. There was loud music, a lack of light and blindfolds were constantly used. MM Elçi, Çem, Kurbanoğlu and Erten were blindfolded at all times, and kept in an overcrowded corridor and forced to lie on a cold, wet floor near the toilet.
615. The applicants claimed that the aim of this ill-treatment was to compel them to sign false documents as to the arrests, searches, confrontations and custody. There were no proper safeguards and a total failure to investigate the allegations of ill-treatment, which in itself amounted to a breach of Article 3 of the Convention.
616. As regards the absence of safeguards against ill-treatment in custody, the applicants referred to the incommunicado nature of their detention, its undue length, the absence of a medical report for most of the applicants prior to their detention, inadequate or non-existent interrogation records, perfunctory medical examinations prior to release, and the absence of investigation into their allegations made to public officials despite claims by some that they could identify their assailants. The lack of investigation was due to the officials' constant assumption that such allegations were never true (cf. Prosecutor Haney's evidence paragraph 357 above).
617. The applicants stressed the relative strength of their own evidence. In particular, they submitted that their oral evidence to the Commission Delegates had been impressive, credible and generally consistent, and was to be accepted in its entirety.
618. In contrast, the applicants submitted, the evidence provided by the Government had been either weak or lacking. Mr Güven's evidence, for example, was qualified as wholly unreliable, being vague and contradictory. He had been unable to provide a single specific example of any message he claimed had been sent by the applicants (paragraph 270 above), and yet this was the main basis for their detention and subsequent prosecution. He implied that he had received little benefit from his confessions. However, he had been released despite the sentence of life imprisonment which had been imposed on him for the murder of two policemen (cf. paragraph 275 above).
619. The applicants contended that the evidence of Dr Eğilmez's was unreliable, given his difficulty in recollecting the present case and the limited nature of his examination in recording signs of blows, force or violence. However, the applicants supported the evidence of Dr Demirel (paragraphs 296-298 above), as being independent and objective.
620. The evidence of Colonel Eşref Hatipoğlu was deemed to be equally unreliable, as well as misleading, given his intolerance of any challenge to his authority and his bad faith in relation to allegations of human rights abuses on the part of the Turkish authorities. In view of his broad jurisdiction, it was unlikely that he had had any personal knowledge of the applicants' conditions of detention. For example, contrary to his contention that a maximum of 20 people would have been held in the Diyarbakır provincial gendarmerie command at the material time, the relevant custody records clearly showed that up to 45 people had been held on a single night (cf. paragraphs 306 and 494 above). He sowed confusion as to the responsible authority for the approval of arrests of the present kind. The purported PKK “hit-list” (paragraph 304 above) was merely presumed to have been smuggled out of prison by a defence lawyer, but was never relied on or referred to during the six year prosecution of the applicants.
621. The applicants considered that Mr Bozoğlu's evidence had been especially unreliable, denying ever having heard allegations of torture despite the fact that such allegations had been made to numerous public officials. They drew particular attention to the evidence of Mr Hatipoğlu and Prosecutor Haney that ill-treatment was inconceivable or raised as a routine defence tactic (paragraphs 307 and 357 above).
622. Prosecutor Haney's evidence (paragraphs 352-364 above) illustrated the failure to investigate and the lack of good faith on the part of the Turkish authorities in dealing with the applicants' allegations.
623. The applicants contended that, apart from the evidence of Mr Durmuş (paragraphs 416-422 above), the evidence of the other Government witnesses to the Commission Delegates had been unreliable, vague and sometimes irrelevant (such as that of Mr Ates, paragraphs 382-384 above).
624. The applicants contended that the video recordings were of little evidential value, showing only a small part (1 %) of the interrogation of six applicants on just one occasion. On a conservative estimate, if the applicants had each been interrogated three times for two hours each time, that should have generated 96 hours of recordings. The recordings were undated and did not show the four applicants who had refused to sign statements and confrontation records (Tahir Elçi, Niyazi Çem, Meral Daniş Beştaş and Arzu Sahin). Nor did they disclose the identity of the interrogator. The recorded statements were not reflected in the written statements attributed to these applicants. Any incriminating remarks which were recorded had either been dictated to them beforehand or were thrown out haphazardly to avoid ill-treatment. No questions were put to these six applicants about incriminating documents allegedly found on them, which lent weight to the applicants' submission that no such documents had ever been found and that the authorities purported search records had been fabricated.
625. In support of their claims of ill-treatment in custody, the applicants also relied on the ancillary evidence they had submitted, including reports of the European Commission of Human Rights, judgments of the Court, reports and decisions of United Nations institutions, and Amnesty International Reports. They also referred to the statements concerning Turkey of the European Committee for the Prevention of Torture, which found systematic ill-treatment being carried out in police custody, and they alleged that similar criticism could be levelled at the gendarmerie at that time, albeit to a lesser extent. They contended that this documentation could not be excluded by virtue of its non-judicial character.
2. The Government
626. The Government submitted that the applicants' allegations of torture were wholly unsubstantiated. Most of the evidence had been submitted by the applicants themselves, and lacked objectivity and independence. On the contrary, the video recordings of the applicants' interrogations showed that they had suffered no ill-treatment whatsoever.
627. As regards the other evidence, the Government noted that on 10 December 1993 Tahir Elçi, Sebahattin Acar, Niyazi Çem, Şinasi Tur, Meral Daniş Beştaş, Mesut Beştaş, Selim Kurbanoğlu, Vedat Erten and Hüsniye Ölmez were examined by a forensic doctor, Dr Eğilmez, who found no evidence of ill-treatment (paragraphs 284-293 and 547 above).
628. Meral Daniş Beştaş did not tell Dr Eğilmez that she was suffering from respiratory problems (cf. paragraphs 199 and 288 above). Moreover, even though she produced medical evidence of pneumonia for which rest had been recommended, she continued working after her release. Nor did Mrs Beştaş submit this medical evidence to the State Security Court.
629. All the applicants could have asked for a medical examination during their detention in gendarme custody. They could have denounced Dr Eğilmez for falsely reporting their medical condition before the Public Prosecutor. None of this was done.
630. Allegations of torture or ill-treatment and allegations that doctors were merely acting in accordance with the instructions of the security forces were a standard defence tactic at the time. Any substantiated allegations would have been taken up by the Public Prosecutor.
631. The Government did not share the views expressed in various reports relied on by the applicants concerning Turkey and drawn up by certain international governmental or non-governmental organisations, the CPT statements being mainly concerned with police rather than gendarme custody.
B. The Court's assessment
1. General Principles
632. The Court reiterates that Article 3 enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and its Protocols, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation (see, among other authorities, the Ireland v. the United Kingdom judgment of 18 January 1978, Series A, no 25, p. 65, §163, and the Selmouni v. France judgment of 28 July 1999, Reports 1999-V, § 95).
633. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (the Ireland v. the United Kingdom judgment cited above, p. 65, § 163). The Court recalls in this regard that, in respect of persons deprived of their liberty, recourse to physical force which has not been made strictly necessary by their own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 (see the Ribitsch v. Austria judgment of 4 December 1995, Series A no. 336, p. 26, § 38, the Tekin v. Turkey judgment of 9 June 1998, Reports 1998-IV, § 53, and the Selmouni v. France judgment cited above, § 99).
634. In order to determine whether a particular form of ill-treatment should be qualified as torture, the Court must have regard to the distinction, embodied in Article 3, between this notion and that of inhuman or degrading treatment. As the Court has previously found, it appears that it was the intention that the Convention should, by means of this distinction, attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering (see the Selmouni v. France judgment cited above, § 96). However, as the Court has further observed, certain acts which were classified in the past as “inhuman or degrading treatment” as opposed to “torture” could be classified differently in the future: the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies (ibid. § 101).
635. The Court further recalls its case-law that, in assessing evidence in a claim of a violation of Article 3 of the Convention, it adopts the standard of proof “beyond reasonable doubt” (Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001). Such proof may, however, follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (Ireland v. the United Kingdom judgment cited above, p. 65, § 161).
636. The Court is sensitive to the subsidiary nature of its task and recognises that it must be cautious in taking on the role of a first instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom, no. 28883/95, decision of 4 April 2000). Nonetheless, where allegations are made under Article 3 of the Convention, as in the present case, the Court must apply a particularly thorough scrutiny (see, mutatis mutandis, the Ribitsch v. Austria judgment of 4 December 1995, Series A no. 336, § 32, and Avşar v. Turkey, cited above, § 283).
2. The present case
637. In assessing the applicants' allegations of torture and inhuman or degrading treatment, the Court has had particular regard to the oral evidence presented by witnesses before the Delegates of the Commission.
638. The Court finds that it is not possible to establish to the requisite standard of proof the veracity of Mr Elçi's allegations of ill-treatment by the Cizre police on his initial detention (paragraphs 14 and 86 above), there being no corroborative evidence before it.
639. However, as regards the allegations of ill-treatment at the Diyarbakır provincial gendarmerie command made by the applicants Tahir Elçi, Şinasi Tur, Sabahattin Acar, Niyazi Çem, Mehmet Selim Kurbanoğlu, Meral Daniş Beştaş, Mesut Beştaş, Vedat Erten, and Hüsniye Ölmez, the Court finds their claims credible as a whole.
640. The Court notes the consistency of the allegations made by the applicants that Tahir Elçi, Niyazi Çem, Meral Daniş Beştaş and Hüsniye Ölmez were insulted, assaulted, stripped naked and hosed down with freezing cold water. Although Ms Ölmez did not testify before the Commission Delegates herself, her allegations are corroborated by other applicants and, in the Court's view, by the clearly ill and exhausted state in which she appeared on the video cassette recording of her interrogation presented by the Government (paragraphs 496-497 above). Moreover, the applicants had maintained their allegations whenever they were able to make statements freely before the Public Prosecutor, the Investigating Judge and the Commission Delegates.
641. The Court finds to be credible and consistent the applicants' testimony about their dire conditions of detention - cold, dark and damp, with inadequate bedding, food and sanitary facilities - as well as the allegations made by Şinasi Tur, Sabahattin Acar, Mehmet Selim Kurbanoğlu, Mesut Beştaş and Vedat Erten that they were insulted, humiliated, slapped and terrified into signing any document that was put before them. Furthermore, the Court accepts that at least at crucial moments, such as during interrogations and the confrontations with Mr Güven, the applicants were blindfolded.
642. The collective medical examination of the applicants prior to being brought before the Public Prosecutor can only be described as superficial and cursory (paragraphs 284-286 and 291 above). The Court does not therefore attach great weight to it. In contrast, the medical evidence of the subsequent pneumonia contracted by Ms Beştaş (paragraph 549 above), and of the small bruises found on Arif Altinkalem (paragraph 547 above) and Ms Ölmez (paragraph 548 above), lends some credence to the applicants' claims.
643. The Government witnesses before the Commission Delegates constantly denied the applicants' allegations, but in such a strident manner as to cast doubt on their testimony in the light of the accepted background knowledge for the period (for example the statements of the European Committee for the Prevention of Torture - CPT - paragraphs 596-599 above). Moreover, there were certain important inconsistencies in their evidence.
644. For instance, a key Government witness, Colonel Eşref Hatipoğlu was adamant that only 20 people could have been detained at the command (paragraph 306 above). However, it is clear from the custody records provided by the Government that at least 45 people were detained over a single night at the material time (paragraph 494 above). The Government have not provided records from any other establishment showing the detention elsewhere of any of the people cited in the former, despite their claim to that effect (cf. paragraphs 318-319 above). The Court finds it likely therefore that a detention centre foreseen for 20 people would have had inadequate facilities to cope with double that number, which adds to the credibility of the applicants' claim that some of them were kept in the corridor.
645. Given that the applicants' complaints were not taken seriously or investigated by the authorities, the Court finds that no evidence has been presented in the present case that serves to undermine the applicants' accounts, which the Court has found to be credible and consistent. Notably, Mr Hatipoğlu simply dismissed allegations of this type (paragraphs 307 and 315-316 above) and the Public Prosecutors generally considered such matters to be a mere defence tactic (Prosecutor Haney at paragraph 357 above and, purportedly, Chief Prosecutor Selçuk at paragraph 565). Judge Ural made no assessment or investigation of the applicants' clear claims to him, only drawing conclusions as to their remand in custody (paragraphs 508-531 above). Moreover, the State Security Court failed to reach any conclusion regarding the applicants' allegations of ill-treatment, adjourning the criminal proceedings against them for five years should they remain of good behaviour (paragraph 77 above).
646. In the light of the circumstances of the case as a whole, the Court finds it established that the applicants Tahir Elçi, Niyazi Çem, Meral Daniş Beştaş and Hüsniye Ölmez suffererd physical and mental violence at the hands of the gendarmerie during their detention in November and December 1993. Such ill-treatement caused them severe pain and suffering and was particularly serious and cruel, in violation of Article 3 of the Convention. It must therefore be regarded as constituting torture within the meaning of that Article.
647. The Court further finds that the applicants Şinasi Tur, Sabahattin Acar, Mehmet Selim Kurbanoğlu, Mesut Beştaş and Vedat Erten were also subjected during their detention to ill-treatment in violation of Article 3, although of somewhat less severity. The Court finds that the treatment to which these five applicants suffered was sufficently serious to render it inhuman and degrading.
648. The Court has found that the judicial authorities failed to investigate the applicants' allegations of ill-treatment or reach any conclusion in the matter (paragraph 645 above). In this regard, the Court recalls its case-law to the effect that, where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of agents of the State, that provision, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation (see the Assenov v. Bulgaria judgment of 28 September 1998, Reports 1998-VII, p. 3290 § 102). If this were not the case, the general legal prohibition of torture and inhuman and degrading treatment and punishment, despite its fundamental importance, would be ineffective in practice, and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (ibid.). Such an investigation should therefore be capable of leading to the identification and punishment of those responsible.
649. In view of the total inactivity of the judicial authorities in the present case to investigate the applicants' complaints of ill-treatment in gendarme custody, the Court concludes that there has also been a violation of Article 3 of the Convention in its procedural aspect.
IV.ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
A. Submissions of the parties
1. The applicants
650. The applicants contended that their arrests were arbitrary and unlawful, in breach of Article 5 § 1 of the Convention, which provides insofar as relevant as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law...
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence ...”
651. The applicants claimed that no evidence had been provided by the Government as to the reasons for the decisions to apprehend them. The evidence on which the Government relied did not disclose any reasonable suspicion against them. The true motive of the measure was the authorities' hostile attitude to the applicants' work as defence lawyers before the State Security Court and their role in assisting individuals to denounce human rights abuses in Turkey. The authorities demonstrated flagrant bad-faith and a desire to intimidate the applicants as a result.
652. The applicants' arrest and detention, having been decided on and conducted by the security forces, without any evidence of authorisation from the Prosecutors' Office, was unlawful as it should have been ordered by a Prosecutor, in accordance with Articles 58 and 59 of the Law on Advocates. The latter was mandatory throughout Turkey, including the state of emergency areas, as was clearly confirmed by the ministerial circular of 14 February 1994 (paragraphs 584-586 above).
653. In all the circumstances of the case, the Court should draw adverse inferences from the Government's failure to provide material information and evidence as to a “procedure prescribed by law”, within the meaning of the second sentence of Article 5 § 1 of the Convention. Moreover, no facts or information were submitted by the Government which disclosed the existence of any reasonable suspicion against the applicants which could satisfy an objective observer (cf. the Fox, Campbell and Hartley v. the United Kingdom, judgement of 30 August 1990, Series A no. 182, § 31). Particular risks are involved in basing “reasonable suspicion” on the statements of people who themselves are accused of terrorist crime, as in the case of Mr Güven (cf. Contrada v. Italy, no. 27143/95, Decisions and Reports [DR] 88-A, p. 94).
654. Especially strong evidence must be provided to justify detention of up to 25 days, as distinguished from a few hours. It was conceded by the Government that the sole evidence was the four statements of Mr Güven (paragraphs 424-434 above). Against that must be weighed Mr Güven's bad character, his inability to provide concrete details, the benefits he stood to gain from the Remorse Law, his need to avoid repercussions from the PKK by denouncing persons with, in fact, no connection with that organisation, his limited ability to provide “new” evidence and his acquaintance with the applicants. No attempt was made to corroborate Mr Güven's evidence, whose credibility in the circumstances was open to the greatest doubt, particularly when contrasted with the applicants' good character and professional status.
655. Furthermore, only fleeting references to the applicants were made in Mr Güven's statements, and no reference whatsoever was made to MM. Acar and Altinkalem before they were arrested.
656. The applicants alleged that the authorities' bad faith was corroborated by the facts of the case and the official Susurluk report on unknown perpetrator killings, which allegedly recorded the illegal activities carried out at the behest of, or in co-operation with, the Diyarbakır gendarmerie command (pp. 24-29 of that report), and which referred to specific orders to kill Hüsniye Ölmez in 1993 (p. 28 of that report). The applicants also referred to the unresolved murder of 6 lawyers between 1993 and1995, as well as the criminal prosecution of 48 lawyers practising in defence work (cf. paragraph 554 above). Mr Hatipoğlu's oral evidence to the Delegates showed general hostility and bias in the matter, as well as his obvious attempt to intimidate the applicants on 10 December 1993. The evidence also showed that incriminating documents had been fabricated to use as evidence against the applicants, in contrast to the genuine search records, seen and signed by the applicants, which had made no mention of such material.
657. False confrontation records and statements were similarly fabricated, using standard formulae. However, Mr Güven was unable to confirm the accuracy of the contents of the confrontation records, other than what he himself had stated. Moreover, Mr Özer, who had not been present at any of the confrontations, thought nothing of signing such a document as it bore no other official's signature (paragraphs 367-368 above). Attempts were made to force the applicants to sign false statements and records after ill-treatment and torture. A number of applicants were expressly threatened by Mr Hatipoğlu at the end of their detention, and Prosecutor Haney manifested no interest in any matter which might have shown that the criminal allegations against the applicants were unfounded.
658. In the applicants' view, these and other elements clearly demonstrated the authorities' bad faith.
659. The applicants added a complaint under Article 5 § 2 of the Convention that they were not informed promptly of the reasons for their arrest. (Article 5 § 2 requires that detainees be informed promptly of the reasons for their arrest.)
2. The Government
660. The Government denied that the applicants were detained unlawfully or arbitrarily. They were detained and indicted on 22 December 1993 for being members of the PKK. They were accused, inter alia, of acting as couriers between the PKK and prisons, smuggling into prisons cyanide, heroin and a knife, harbouring PKK members and the like, contrary to Article 168 of the Criminal Code and Article 5 of the Law on the Prevention of Terrorism. Safeguards existed against arbitrary detention by way of the controls operated by the Public Prosecutor over the police and gendarmerie, and the possibility of testing the lawfulness of detention in the proceedings before the State Security Court.
661. Insofar as the security forces had departed from the requirements of Articles 58 and 59 of Law No. 1136 on Advocates, the Government submitted that these provisions were overridden by the state of emergency laws and Law No. 2845 on the establishment and judicial practice of the State Security Courts. The prosecution of the terrorist-related charges against the applicants fell within the jurisdiction of the State Security Courts, before which the Special Procedure Law for the Prosecution of Civil Servants did not apply so, a fortiori, neither did the Law on Advocates. Again as a matter of interpretation, the offences for which the applicants were being investigated were not deemed to be part of their professional activities and, therefore, they were not protected by the Law on Advocates.
662. The serious allegations which had been made against the applicants had to be seen in the context of intense PKK terrorist activities at the time. The Government referred to the background state of emergency in south-east Turkey, the virulent terrorist campaign and the Turkish Government's declaration under Article 15 of the Convention, derogating from Article 5 rights to meet this emergency. The applicants acknowledged that they had defended PKK suspects and had had contacts with PKK prisoners, including Abdülhakim Güven, who was one of the main prosecution witnesses against them and whose evidence was confirmed by intelligence sources. Searches of the applicants, their homes and their offices revealed incriminating materials. The evidence showed that they had acted as couriers or contact persons for the PKK, and that some of them had been involved in more serious criminal activities. They thus drew upon themselves grave suspicions which justified their arrest and detention.
663. Accordingly, the competent authorities had decided that the charges against the applicants had nothing to do with the applicants' professional activities, and that, therefore, as a matter of interpretation, Articles 58 and 59 of this Law were inapplicable. Furthermore, the applicants were able to raise the alleged irregularity of their detention before the Diyarbakır State Security Court.
664. Criminal proceedings were subsequently initiated against the applicants, starting with the Prosecutor's indictment of 22 December 1993, followed by the criminal prosecutions against them before the State Security Court.
665. The Government rejected the suggestion that the applicants were detained because of their involvement in criminal defence or human rights work. They denied that Bekir Selçuk, the Chief State Prosecutor for the state of emergency region, had informed a Norwegian Bar Association representative whom he had met that certain applicants were also charged with making false and unwarranted applications to the European Commission of Human Rights (cf. paragraph 561 with paragraph 565 above). Making applications to the Convention organs is a constitutional right, but these applicants had been disseminating pro-PKK propaganda through various non-governmental human rights associations in Europe, which obviously was not a reference to the European Commission of Human Rights at the time. In any event, Mr Selçuk had not been the Prosecutor in the applicants' case. It had been Mr Ünal Haney.
666. The applicants' detention was therefore wholly justified and any claim to the contrary was without foundation.
B. The Court's assessment
667. The Court recalls that Article 5 § 1 of the Convention requires that any deprivation of liberty must be both “lawful” and comply with “a procedure prescribed by law”. By the use of these terms the Convention refers back essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. However, it requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness (see, in particular, the Winterwerp v. the Netherlands judgment of 24 October 1979, Series A no. 33, pp. 17-18 and 19-20, §§ 39 and 45, and the van der Leer v. the Netherlands judgment of 21 February 1990, Series A no. 170, p. 12, § 22).
668. The Court further recalls that the requirement in paragraph 1 (c) of Article 5 that there should exist a “reasonable suspicion” against the person who is deprived of his liberty presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence in question. What may be regarded as “reasonable” will however depend on all the circumstances (See the Fox, Campbell and Hartley v. the United Kingdom judgment of 30 August 1990, Series A no.182, p. 16, § 32).
669. The Court would emphasise the central role of the legal profession in the administration of justice and the maintenance of the rule of law. The freedom of lawyers to practise their profession without undue hindrance is an essential component of a democratic society and a necessary prerequisite for the effective enforcement of the provisions of the Convention, in particular the guarantees of fair trial and the right to personal security. Persecution or harassment of members of the legal profession thus strikes at the very heart of the Convention system. For this reason, allegations of such persecution in whatever form, but particularly large scale arrests and detention of lawyers and searching of lawyers' offices, will be subject to especially strict scrutiny by the Court.
670. The Government claim that in the present case each of the applicants was lawfully detained on reasonable suspicion of having committed criminal offences under Articles 168 and 169 of the Turkish Criminal Code.
671. As to the reasonableness of the suspicion against the applicants, the Court observes that Abdülhakim Güven, a PKK confessor, denounced to the gendarmerie all the applicants, with the exception of Arif Altinkalem, for assisting the PKK, in particular by acting as couriers between their imprisoned clients and other PKK members (paragraphs 424-434 above). As a result, between 15 November and 7 December 1993, the applicants were taken into custody by the police or gendarmes and detained at the Diyarbakır provincial gendarmerie command for periods varying from 7 to 25 days, when they were interrogated about these allegations and confronted with Mr Güven. The detention dates established by the Court, despite slight discrepancies concerning certain applicants, are as follows:
Dates of detention in police / gendarme custody
Number of days
23.11.93 - 10.12.93
07.12.93 - 21.12.93
07.12.93 - 21.12.93
18.11.93 - 10.12.93
15.11.93 - 10.12.93
15.11.93 - 10.12.93
23.11.93 - 10.12.93
Mehmet Selim Kurbanoğlu
20.11.93 - 10.12.93
Meral Daniş Beştaş
16.11.93 - 10.12.93
16.11.93 - 10.12.93
23.11.93 - 10.12.93
16.11.93 - 10.12.93
16.11.93 - 10.12.93
30.11.93 - 10.12.93
Fuat Hayri Demır
03.12.93 - 10.12.93
16.11.93 - 10.12.93
672. The Government contended that, because of the claims of Mr. Güven, there existed a reasonable suspicion that those applicants cited by him had committed terrorist-related offences, which required further investigation and justified their detention. The applicants argued that the fleeting references to them in the statements of a person who was himself accused of terrorist offences and who stood to benefit under the Remorse Law if he implicated others, afforded an insufficient basis on which to found a reasonable suspicion against them, and that no facts or information provided by the Government disclosed the existence of such a suspicion as would satisfy an objective observer.
673. Having regard to the conclusion reached in the following paragraphs, the Court does not find it necessary finally to decide the question whether there existed a reasonable suspicion against those applicants to whom express reference was made in the various statements of Mr. Güven.
674. However, the Court notes that Arif Altınkalem was apprehended on 16 November 1993, whilst Mr Güven's statements were being made to the gendarmerie on 15 and 16 November 1993 with no mention of him. The Government have not provided any evidence to indicate the basis on which any reasonable suspicion of an offence could have been held against Mr Altinkalem. In these circumstances, the Court concludes that there was none, other than the fact that he was a defence lawyer for PKK suspects before the State Security Court, together with the other applicants.
675. Turning to the question of the lawfulness of the applicants' detention, the Court observes that the evidence obtained by the Commission Delegates revealed a certain confusion and inconsistency between the various witnesses as to the requirements of domestic law governing the apprehension and detention of persons suspected of committing a criminal offence.
676. Mr. Hatipoğlu initially appeared to assert that he had the power of decision to detain suspects, but subsequently qualified this by saying that it was necessary to notify, among others, the Chief Prosecutor of the decision, and that the actual decision to detain had to be taken by a Prosecutor (paragraph 305 above). Mr. Gül initially appeared to suggest that the Prosecutor only had to be informed of the decision of the gendarmerie to detain a suspect but, later in his evidence, he confirmed that gendarmes could take persons into custody on their own initiative as long as the judicial authorities were informed and approved the decision. He claimed that such authority could be given orally, but would later be recorded in written form. He further claimed that such authority could be given in writing after the event but that, in such a case, the authority would be back-dated to the date when the suspect was in fact detained (paragraph 323 above). Mr. Haney appeared to assert that the prior authority of the Prosecutor was necessary but that, at least at the material time, such authority could be given orally, the law not requiring a written order (paragraph 353 above).
677. The Court further observes that there exists a dispute between the parties as to the effect, if any, of Law No. 1136 on Advocates on the detention of, and investigation of offences alleged to have been committed by lawyers. On the one hand, the applicants argued that the Law established a special regime which applied throughout Turkey, including the state of emergency areas, and which required that investigations relating to lawyers should be carried out directly by Public Prosecutors even in matters unrelated to their professional activities. In this regard, reliance was placed on the circular of the Ministry of Justice of 14 February 1994 (paragraph 586 above) which reiterated and emphasised this requirement. On the other hand, the Government argued, with the support of the evidence of Mr. Haney, that Law No. 1136 related exclusively to ordinary crimes committed by lawyers and had no application to suspected offences falling within the jurisdiction of the State Security Court, the provisions of Articles 9 and 10 of Law No. 2845 overriding the special procedural provisions of the Law on Advocates in this respect.
678. For the reasons which appear below, the Court does not find it necessary to resolve the dispute between the parties as to the effect, if any, of Law No. 1136 in the present case. It would observe, however, that the legal position at the material time in relation to the investigation of offences alleged to have been committed by lawyers is both lacking in clarity and uncertain. In particular, it is far from clear on the material before the Court whether the effect of Article 9 of Law No. 2845 was to exclude entirely from the scope of the Law on Advocates any offence falling within the jurisdiction of the State Security Court; nor is it apparent what, if any, legal effect the ministerial circular of 1994 had in relation to the investigation of such offences.
679. What is clear and established by the evidence before the Court is that, in order to be lawful, the detention of a suspect, whether or not a lawyer and whether or not the suspected offence falls within the jurisdiction of the State Security Court, requires the authority of a Prosecutor. Such authority may be given orally and may exceptionally be given after the event but, according to the evidence of Mr. Gül, the authority will thereafter be recorded in writing. The central question before the Court is whether it has been sufficiently shown that these requirements of domestic law were complied with in the case of the detention of the present applicants.
680. The Court notes at the outset that no witness who appeared before the Commission Delegates accepted direct personal responsibility for the decision to detain the applicants. Mr. Hatipoğlou accepted that he would have been the person “most responsible” for the decision to detain the applicants but asserted that the final decision to detain had come from the Chief Prosecutor (paragraph 305 above); Mr. Yedekçi gave evidence that the 100 page statement of Abdul Güven had been taken to the Chief Prosecutor for his authorisation and that the latter issued an instruction to detain the applicants (paragraph 342 above) ; Mr Haney asserted that he had had nothing to do with the applicants' apprehension, the decision to detain being taken by the Chief Prosecutor at the State Security Court, Bekir Selçuk (paragraph 354 above). However, the Court notes that Mr. Selçuk did not appear before the Delegates and was at no stage proposed by the Government as a witness. In the absence of his evidence, no clear picture has emerged of the steps taken by the authorities to obtain prior authorisation for the detention of the applicants or, assuming that there was no prior authorisation, to obtain ratification of the decision to detain after the event. In particular, it is unclear whether, even if, as Mr. Haney suggested might have been the case (paragraph 354 above), the instructions were given orally, they were subsequently confirmed in writing; nor is it clear whether (as Mr. Hatipoğlu asserted) a single decision was taken at the same time to detain all the applicants, notwithstanding the fact that the applicants were in fact detained on nine separate dates over a 23-day period, or whether, as this time span would suggest, there was in fact more than one decision to detain.
681. What is especially striking is the complete absence of any documentation recording either the request for authorisation of the applicants' detention or the authority or instructions given by Mr. Selçuk to detain the applicants. Despite the evidence of Mr. Gül that such a record would have been kept (paragraph 323 above), no document was produced indicating the name of the person who had informed the Prosecutor and sought his authority to detain. No written records were produced of any communications between the Prosecutor's Office and the gendarmerie relating to the decision to detain, whether in the form of requests or instructions or otherwise; the only written authorities to detain which were referred to in evidence were those of the gendarmerie itself, contained in the two warrants sent by fax to the police in Cizre and Istanbul (paragraphs 386and 418 above). Nor were any documents produced recording the reasons for the detention of the applicants, the apprehension reports being silent on the point, despite the evidence of Mr. Yedekçi that the reasons should be stated in such reports (paragraph 349 above).
682. In the absence of any such material, the Court finds that it has not been sufficiently shown that the applicants' apprehension and their detention by the gendarmerie for periods of 7 to 25 days in November and December 1993 was duly authorised by a Prosecutor in accordance with the requirements of domestic law or “in accordance with a procedure prescribed by law” within the meaning of Article 5 § 1 of the Convention.
683. The Court refers to the Government's reliance on its derogation under Article 15 of the Convention to the rights guaranteed by Article 5 (paragraph 589 above). Article 15 § 1 of the Convention provides as follows:
“In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under [the] Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.”
684. However, even if the derogation and the resultant legislative Decrees could be considered relevant to the facts of the present case, the Court is not persuaded that the applicants' unlawful detention could thereby be legitimised. The Government have not shown how the applicants' detention without adequate authorisation could have been strictly required by the exigencies of the situation envisaged by Article 15 § 1 of the Convention (cf. mutatis mutandis Şen v. Turkey, no. 41478/98, §§ 22-29, judgment of 17 June 2003).
685. Accordingly, there has been a violation of Article 5 § 1 of the Convention in respect of all the applicants.
686. The Court is unable to take cognisance of the applicants' newly specified complaint under Article 5 § 2 of the Convention as it has been lodged out of time (Article 35 §§ 1 and 4 of the Convention; cf. judgments in Cardot v. France, Series A no. 200 of 19 March 1991, the operative part, and Soc v. Croatia, no. 47863, § 88, of 9 May 2003). Although certain applicants may be said to have raised it in substance, it was not specified or elaborated prior to admissibility, and it has not been the subject of an exchange of observations between the parties. It is inappropriate therefore to take the matter up at this stage of the proceedings.
V.ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1
687. The applicants Tahir Elçi, Şinasi Tur, Sabahattin Acar, Niyazi Çem and Mehmet Selim Kurbanoğlu complained about the searches and seizure of files and documents, which took place at the time of their arrests. They invoked Article 8 of the Convention as well as Article 1 of Protocol No. 1, the relevant parts of which provide as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety ... for the prevention of disorder or crime, or for the protection of the rights and freedoms of others.”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest...”
A. Submissions of the parties
1. The applicants
688. The applicants MM Elçi, Tur, Acar, Çem and Kurbanoğlu contended that the search of their homes and offices was of doubtful lawfulness, given the lack of clear authority from a Prosecutor or Judge, the need to protect the confidentiality of the client/lawyer relationship, the bad faith which tainted the arrest decisions and the indiscriminate nature of the searches and seizures, with no indication of the specific items sought and no observance of any special rules governing professional papers. Moreover, it was claimed that documentation which was not used in the criminal proceedings, such as Mr Elçi's files relating to his clients' cases before the Commission, was not returned to the applicants, despite the Government's declarations to the contrary, such declarations being unsubstantiated by any written proof. In particular, Mr Elçi averred that papers concerning two applications to the Commission (Özkan and 31 others v. Turkey, application no. 21689/93, and Ismail Ertak v. Turkey, application no. 2764/92) were never returned to him. The applicants submitted that even the temporary deprivation of the documents concerned infringed Article 8 of the Convention and Article 1 of Protocol No. 1.
2. The Government
689. The Government contended that the search of the homes and offices of certain applicants, and the confiscation of personal items and files, was in accordance with the law, namely Article 11 of the Law on the State of Emergency No. 2935, Article 3 of Decree No. 430 for the state of emergency region and Articles 90 to 97 of the Code of Criminal Procedure. They were necessary under Article 8 § 2 of the Convention in the interests of national security, public safety, for the prevention of disorder and crime, and the protection of the rights and freedoms of others from terrorist attack. Furthermore, these matters did not raise any issue under Article 1 of Protocol No. 1, as any interference with the applicants' property was justified in the public interest, within the meaning of that provision. In this connection, the Government emphasised that the searches in the present case were part of an operation against the PKK, an illegal terrorist organisation responsible for thousands of atrocious murders and maimings, as well as serious economic and social losses.
690. Those items which were deemed pertinent to possible criminal offences were confiscated by the Prosecutor. The other items were returned to their owners, including the files of Mr Elçi, which were returned to his defence counsel by a decision of the Third State Security Court. If any items had been lost, Mr Elçi could have brought a criminal complaint against the responsible official. Mr Elçi could also have asked for copies of any document in the court's file. He had remedies against any irregularities under Articles 307 and 308 of the Code of Criminal Procedure, as well as the possibility of instituting civil proceedings. The applicants did not seek access (consultation and copying), by way of a court order, to any professional documents allegedly retained.
691. All records of searches had to show the consent and signatures of the individuals concerned. In the present case, the applicants gave their consent to the searches, as indicated by the records which they signed. Any alleged irregularities could have been raised by the applicants (all lawyers familiar with the relevant law and procedure) during the ensuing criminal proceedings.
692. In conclusion, the Government contended that the applicants' complaints under Article 8 and under with Article 1 of Protocol No. 1 were wholly unfounded.
B. The Court's assessment
693. The Court notes that, on their apprehension, the applicants' homes and/or offices were searched and documentation seized in some instances. No search warrants were produced by the security forces and no details were given to the applicants of what was being sought. Anything remotely connected with Kurdish matters or the PKK was taken, as were certain client case files which should have been subject to professional confidentiality and privilege.
694. The parties disputed whether certain incriminating documents, such as receipts bearing the stamp of the “ERNK” (the political wing of the PKK) were found on some of the applicants. In particular, the Government were unable to produce any original document signed by Mr Elçi acknowledging his possession of such a document. Other applicants disputed their willingness to sign similar acknowledgements. Most alleged that their signatures had been extracted towards the end of the detention period whilst they were blindfolded and after having been tortured or treated in an inhuman or degrading manner.
695. Mr Elçi also denied that his client files concerning his Commission work had ever been returned to him at a later date. However, the Court is satisfied on the evidence that these files were probably returned to his legal representative before the State Security Court, Mr Dinler (see paragraph 537 above).
696. The Court will first examine the applicants' complaints under Artice 8 of the Convention. The Court finds that the search of the houses of five of the applicants and, in certain cases, the seizure of personal documents and other items constituted an interference with the applicants' right to respect for their homes and correspondence. The Court likewise finds that the search of the professional offices of Tahir Elçi and Nevzat Kaya, and the seizure of files there, amounted to an interference with their right to respect for their “homes” and “correspondence”, as those terms have been interpreted in the Court's case-law (see the Niemietz v. Germany judgment of 16 December 1992, Series A, no. 251-B, § 30).
697. The question remains whether the interferences were justified under paragraph 2 of Article 8 and, more particularly, whether the measures were “in accordance with the law” for the purposes of that paragraph. In this regard the Court recalls its finding above that the applicants' apprehension and detention by the gendarmerie had failed to follow a procedure prescribed by law, there being no record of any prior or post legitimisation having been given by a Prosecutor (paragraphs 675-685 above). Similarly, the Court finds that no search warrants were issued by a Prosecutor or Judge and no official document or note of verbal instructions describing the purpose and scope of the searches was drawn up by any judicial authority beforehand or afterwards.
698. Insofar as Article 11 of the Law No. 2935 on the State of Emergency and Article 3 of Decree No. 430 for the state of emergency region gave the Regional Governor powers to order searches and seizure where delay was deemed prejudicial (paragraph 582 above), the Court notes that no record of the Governor's instructions for these particular searches, delimiting their object and scope, was produced by the Government. However, the search and seizures were extensive and privileged professional materials were taken without specific authorisation. The Court is again struck by the lack of accountability or any acceptance of direct responsibility by the officials involved in the events of the present case (cf. paragraph 680 above).
699. In sum, the Court finds that the search and seizure measures in the present case were implemented without any, or any proper, authorisation or safeguards. In these circumstances, the Court concludes that the interferences in question have not been shown to be “in accordance with the law” and that there has accordingly been a violation of Article 8 on this ground in the case of the five applicants concerned. In view of this conclusion, the Court does not find it necessary to examine the other issues of justification arising under the Article.
700. Having regard to its conclusion that there has been a violation of Article 8 of the Convention, the Court similarly does not find it necessary to examine separately the applicants' related complaints under Article 1 of Protocol No. 1.
VI.ALLEGED VIOLATION OF FORMER ARTICLE 25 OF THE CONVENTION
A. Submissions of the parties
1. The applicants
701. Finally, the applicants Tahir Elçi, İmam Şahin, Arzu Şahin, Sabahattin Acar and Baki Demırhan alleged a hindrance to their right to make complaints to the Convention organs, in breach of Article 25 of the Convention (now replaced by Article 34), which provided as follows:
“The Commission may receive petitions addressed to the Secretary General of the Council of Europe from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in [the] Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions. Those of the High Contracting Parties who have made such a declaration undertake not to hinder in any way the effective exercise of this right.”
702. They referred to the nature of their work and the history of intimidation and torture in police custody already established by the Convention organs for the years in question, which placed them in a category of people who were likely to have recourse to the Convention on their own behalf or on behalf of their clients. This context produced a “chilling effect” on the exercise of the right of individual petition and thus constituted an unjustified interference with the Article 25/34 right. They recognised, however, that an interference with a third party's application to the Convention organs did not amount, of itself, to evidence of a breach of Article 25 in respect of the rights of that person's legal representative. Nevertheless it was claimed that four of the applicants - Sabahattin Acar, Baki Demırhan, İmam Şahin and Arzu Şahin - were charged with criminal conduct simply on the basis of making applications to the Commission. This was confirmed in the statement of the Minister of Justice dated 14 November 1996 (paragraph 558 above).
703. Recently, all the applicants contended that the events which they had described were in breach of the right of individual petition, being intended to have a chilling effect on any lawyers willing to operate in the human rights field, either domestically or internationally. Whilst the indictment had been unclear in its European references, the intention of the officials concerned was made clear in their evidence to the Convention organs.
704. The applicant Tahir Elçi further complained that the treatment to which he was subjected was related to the fact that he had assisted clients in bringing cases before the Commission.
2. The Government
705. The Government submitted that the complaints under former Article 25 of the Convention were wholly unfounded. There was no relationship whatsoever between the cases brought by the applicants, MM Elçi, Şahin, Acar and Demırhan, before the European Commission of Human Rights on behalf of their clients and the domestic criminal proceedings initiated against them for their alleged PKK activities.
706. These applicants lodged their own applications with the Commission during their detention at the Diyarbakır provincial gendarmerie command, with which applications there was no interference. The Government recalled that Articles 36 and 90 of the Constitution safeguarded the right to put claims before a competent review body, which provisions included the right of individual petition under the Convention.
707. During interrogations, no questions were put to the applicants regarding cases pending before the Commission, as is reflected in the applicants' oral evidence to the Commission Delegates.
708. If anyone were to have made a complaint under this provision, it would have had to have been the applicants' clients, not the applicants themselves.
709. The applicants Mr and Mrs Şahin and Mr Demırhan had confessed in their statements to the gendarmes of having had contacts with PKK members in other parts of Europe and that they had sent out documents with a view to disseminating propaganda against Turkey. This was taken up in the indictment and was not linked to any Convention applications.
710. The Government repeated that Mr Elçi's Commission case files were returned to him.
B. The Court's assessment
711. The Court recalls that it is of the utmost importance for the effective operation of the system of individual petition instituted by former Article 25 (now replaced by Article 34) that applicants should be able to communicate freely with the Convention organs without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see the Şarli v. Turkey judgment of 22 May 2001, no. 24490/94, § 84). In this context, “pressure” includes not only direct coercion and flagrant acts of intimidation but also other improper indirect acts or contacts designed to dissuade or discourage applicants from pursuing a Convention remedy.
712. In the present case, the Court notes that considerable confusion has arisen over the references to Europe and to European human rights associations in the interrogations of and indictment against the applicants. However, the Court does not find it established that these were references to the Convention organs or applications to the Commission at the time. It accepts that they were more likely to have been references to non-governmental organisations, whether allegedly linked to the PKK or having objective human rights aims (see, for example, the indictment as regards Sabahattin Acar, Baki Demırhan, İmam Şahin and Arzu Şahin, paragraph 535 above).
713. The Court finds that the applicants Tahir Elçi, İmam Şahin, Arzu Şahin, Sabahattin Acar and Baki Demırhan were able to lodge complete applications to the Commission and to pursue them before the Convention organs without major obstacles.
714. The Court accepts that the events to which they were subjected could have had a damaging effect on the applicants' professional activities, albeit of a temporary nature. More generally, the Court expresses its concern as to the inevitable chilling effect that this case must have had on all persons involved in criminal defence work or human rights protection in Turkey (see paragraph 669 above). However, the Court must limit its conclusion to the facts of the present applications.
715. In the light of the above considerations, the Court does not find, on balance, that there has been a significant hindrance in the applicants' right of individual petition in breach of former Article 25 of the Convention.
716. As to the recent general complaint of hindrance, made by the other applicants under Article 34 of the Convention, the Court is unable to take cognisance of it as it has been lodged out of time (Article 35 §§ 1 and 4 of the Convention).
VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION
717. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Pecuniary damage
718. Each of the applicants made claims for loss of earnings in the following amounts:
- for Tahir Elçi, 107,000 pounds sterling (“GBP”);
- Nevzat Kaya, GBP 70,000;
- Şinasi Tur, GBP 70,000;
- Sabahattin Acar, GBP 105,000;
- Niyazi Çem, GBP 28,000;
- Mehmet Selim Kurbanoğlu, GBP 30,000;
- Meral Daniş Beştaş, GBP 70,000;
- Mesut Beştaş, GBP 45,000;
- Vedat Erten, GBP 70,000;
- Baki Demırhan, GBP 70,000;
- Arif Altinkalem, GBP 65,000;
- Gazanfer Abbasioğlu, GBP 75,000;
- Fuat Hayri Demır, GBP 100,000;
- Hüsniye Ölmez, GBP 70,000;
- İmam Şahin, GBP 70,000; and
- Arzu Şahin, GBP 70,000.
719. The Government contested the applicants' claims for pecuniary damages as being unsubstantiated by any evidence, excessive, fictitious and speculative. They emphasised that any award of just satisfaction could only be made on an equitable basis, avoiding unjust enrichment.
720. The Court notes that the claims of the applicants Tahir Elçi, Sabahattin Acar, Mesut Beştaş, Vedat Erten, Hüsniye Ölmez, İmam Şahin and Arzu Şahin refer to the whole of their detention, both in police/gendarme custody and in detention on remand ordered by a court. However, the Court has only found a violation of Article 5 § 1 of the Convention in respect of the applicants' detention prior to their being brought before a court. So instead of 85 to 94 days spent in unlawful custody, or 58 days in respect of Mr and Mrs Şahin, Mr Elçi spent 17 days, Mr Acar 25 days, Mr Beştaş 24 days, Mr Erten 17 days, Ms Ölmez 24 days, and Mr and Mrs Şahin 14 days.
721. In any event, it considers the applicants' claims to be excessive in the light of their limited legal experience at the time, the statement of several of them to the Commission Delegates that they had had difficulty finding any work, hence they had been obliged to act as criminal defence lawyers before the State Security Court as their main activity, and the standard of living in south east Turkey. However, it is clear that there was some loss of earnings during the applicants' detention which has been found to violate Article 5 of the Convention and that a recuperation period was required after their stressful experience in order to restore their health and their clients' confidence. In these circumstances, the Court decides on equitable basis, as required by Article 41 of the Convention, that the applicants should receive the following in pecuniary damage:
- Tahir Elçi, 1,510 euros (“EUR”);
- Nevzat Kaya, EUR 1660;
- Şinasi Tur, EUR 1,750;
- Sabahattin Acar, EUR 1,750;
- Niyazi Çem, EUR 1,510;
- Mehmet Selim Kurbanoğlu, EUR 1,600;
- Meral Daniş Beştaş, EUR 1,720;
- Mesut Beştaş, EUR 1,720;
- Vedat Erten, EUR 1,510;
- Baki Demırhan, EUR 1,720;
- Arif Altinkalem, EUR 1,720;
- Gazanfer Abbasioğlu, EUR 1,300;
- Fuat Hayri Demır, EUR 1,210;
- Hüsniye Ölmez, EUR 1,720;
- İmam Şahin, EUR 1,420; and
- Arzu Şahin, EUR 1,420.
722. The sums awarded in the preceding paragraph are to be paid into the bank account indicated in the applicants' just satisfaction claim.
B. Non-pecuniary damage
723. The applicants made the following claims for non-pecuniary damage:
- for Tahir Elçi, GBP 70,000 in respect of the violations of Articles 3 and 5 of the Convention, account being taken of his 90 days' unlawful detention and the severe ill-treatment to which he was subjected, including dire conditions of detention, as well as the direct attack on the rule of law which the events in his application revealed;
- for Nevzat Kaya, GBP 50,000 in respect of the violation of Article 5 of the Convention, account being taken of his 22 days' unlawful detention in wholly unsatisfactory conditions;
- for Şinasi Tur, GBP 50,000 in respect of the violations of Articles 3 and 5 of the Convention, account being taken of his 26 days' unlawful detention and the ill-treatment to which he was subjected, including dire conditions of detention;
- for Sabahattin Acar, GBP 85,000 in respect of the violation of Articles 3 and 5 of the Convention, account being taken of his 94 days' unlawful detention and the ill-treatment to which he was subjected, including dire conditions of detention;
- for Niyazi Çem, GBP 42,000 in respect of the violation of Articles 3 and 5 of the Convention, account being taken of his 12 days' unlawful detention and the severe ill-treatment to which he was subjected, including dire conditions of detention;
- for Mehmet Selim Kurbanoğlu, GBP 50,000 in respect of the violations of Articles 3 and 5 of the Convention, account being taken of his 21 days' unlawful detention and the ill-treatment to which he was subjected, including dire conditions of detention;
- for Meral Daniş Beştaş, GBP 70,000 in respect of the violations of Articles 3 and 5 of the Convention, account being taken of her 25 days' unlawful detention and the severe ill-treatment to which she was subjected, including dire conditions of detention;
- for Mesut Beştaş, GBP 50,000 in respect of the violations of Articles 3 and 5 of the Convention, account being taken of his 93 days' unlawful detention and the ill-treatment to which he was subjected, including dire conditions of detention;
- for Vedat Erten, GBP 56,000 in respect of the violations of Articles 3 and 5 of the Convention, account being taken of his 86 days' unlawful detention and the ill-treatment to which he was subjected, including dire conditions of detention;
- for Baki Demırhan, GBP 50,000 in respect of the violation of Article 5 of the Convention, account being taken of his 24 days' unlawful detention in wholly unsatisfactory conditions;
- for Arif Altinkalem, GBP 50,000 in respect of the violation of Article 5 of the Convention, account being taken of his 25 days' unlawful detention in wholly unsatisfactory conditions;
- for Gazanfer Abbasioğlu, GBP 70,000 in respect of the violation of Article 5 of the Convention, account being taken of his 10 days' unlawful detention in wholly unsatisfactory conditions;
- for Fuat Hayri Demır, GBP 100,000 in respect of the violation of Article 5 of the Convention, account being taken of his 10 days' unlawful detention in wholly unsatisfactory conditions;
- for Hüsniye Ölmez, GBP 70,000 in respect of the violations of Articles 3 and 5 of the Convention, account being taken of her 93 days' unlawful detention and the severe ill-treatment to which she was subjected, including dire conditions of detention;
- for İmam Şahin, GBP 70,000 in respect of the violation of Article 5 of the Convention, account being taken of his 58 days' unlawful detention in wholly unsatisfactory conditions; and
- for Arzu Şahin GBP 70,000 in respect of the violation of Article 5 of the Convention, account being taken of her 58 days' unlawful detention in wholly unsatisfactory conditions.
The applicants MM Elçi, Tur, Acar, Çem and Kurbanoğlu made no specific claim for just satisfaction in respect of the alleged breaches of Article 8 of the Convention and Article 1 of Protocol No. 1.
724. The Government submitted that the applicants' claims were excessive and, therefore, unacceptable. In view of the lack of evidence regarding the merits of the applicants' case, any award of this kind should be symbolic only.
725. The Court refers to its considerations above regarding pecuniary damage and the periods of detention in police/gendarme custody only (paragraphs 671 and 720 above). It is clear that the applicants suffered non-pecuniary damage in consequence of their experiences, but the Court would distinguish those applicants who had been tortured in breach of Article 3 of the Convention, those applicants who suffered inhuman and degrading treatment in breach of Article 3 of the Convention and those applicants where the Court has limited its finding to a breach to Article 5 § 1 of the Convention.
726. The Court found that the applicants Tahir Elçi, Niyazi Çem, Meral Daniş Beştaş and Hüsniye Ölmez suffered torture, into which the authorities conducted no investigation, in breach of Article 3 of the Convention (paragraphs 646 and 649 above). They were also victims of a breach of Article 5 § 1 of the Convention as their detention by the gendarmes was not in accordance with a procedure prescribed by law (paragraph 682 above). Mr Elçi and Mr Çem were held unlawfully for 17 days, and Ms Beştaş and Ms Ölmez, 24 days. In these circumstances, the Court decides on an equitable basis that Mr Elçi and Mr Çem should each be awarded EUR 25,500, and Ms Beştaş and Ms Ölmez EUR 36,000, each, for non-pecuniary damage.
727. The Court next found that the applicants Şinasi Tur, Sabahattin Acar, Mehmet Selim Kurbanoğlu, Mesut Beştaş and Vedat Erten were ill-treated, in respect of which the authorities did not conduct any investigation, in breach of Article 3 of the Convention (paragraphs 647 and 649 above). They were also victims of a breach of Article 5 § 1 of the Convention as their detention by the gendarmes was not in accordance with a procedure prescribed by law (paragraph 682 above). MM Tur and Acar were held unlawfully for 25 days; Mr Kurbanoğlu, 20 days; Mr Beştaş 24 days and Mr Erten 17 days. In these circumstances, the Court decides on an equitable basis that Mr Tur should be awarded EUR 15,000; Mr Acar, EUR 15,000; Mr Kurbanoğlu, EUR 12,000; Mr Beştaş EUR 14,400 and Mr Erten EUR 10,200, for non-pecuniary damage.
728. Finally, the other applicants were victims of a breach of Article 5 § 1 of the Convention as their detention by the gendarmes was not in accordance with a procedure prescribed by law (paragraph 682 above). Nevzat Kaya was held unlawfully for 22 days; Baki Demırhan, 24 days; Arif Altinkalem, 24 days; Gazanfer Abbasioğlu, 10 days; Fuat Hayri Demır, 7 days; and İmam Şahin and Arzu Şahin, 14 days. In these circumstances, the Court decides on an equitable basis that Mr Kaya should be awarded EUR 6,600; Mr Demırhan, EUR 7,200; Mr Altinkalem, EUR 8,500, including an additional sum in compensation for the lack of any reasonable suspicion justifying his apprehension (paragraph 674 above); Mr Abbasioğlu, EUR 3,000; Mr Demır, EUR 2,100; and Mr and Mrs Şahin, EUR 4,200 each, for non-pecuniary damage.
729. The sums awarded in paragraphs 726-728 above are to be paid into the bank account indicated in the applicants' just satisfaction claim.
C. Costs and expenses
730. The applicants claimed costs and expenses for their representation by British and Turkish lawyers who have performed different tasks, as well as for those incurred by the Kurdish Human Rights Project (“KHRP”) which played a key role in bringing the case at the outset, acted as an effective consultant, prepared translations and provided essential logistical and administrative support throughout. These amount to GBP 1762.50 for counsel's fees in respect of the Article 41 claim, EUR 36,900 for the fees of three Turkish lawyers, and GBP 41,045 for the costs of the KHRP, which included counsels' fees for the earlier stages in the procedure before the Convention organs and GBP 1,995 in respect of costs for translations and the like.
731. The Government submitted that only documented costs, with receipts, invoices, telephone bills and the like could be considered, not the rough calculations presented by the applicants.
732. The Court is not persuaded that all the fees claimed in respect of the KHRP, involving inter alia four British lawyers, were necessarily incurred or that it was essential to have in addition three Turkish lawyers assisting the applicants, themselves lawyers. It accepts, however, that this was a complex case, involving many applicants and considerable translation and co-ordination costs. Deciding on an equitable basis, the Court awards EUR 43,385 in fees and EUR 2,855 in costs, to be paid into the bank account indicated in the applicants' just satisfaction claim.
D. Default interest
733. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT
1. Dismisses, unanimously, the Government's preliminary objections;
2. Holds, by 6 votes to 1, that there has been both a substantive and procedural violation of Article 3 of the Convention in the case of the applicants Tahir Elçi, Niyazi Çem, Meral Daniş Beştaş, Hüsniye Ölmez, Şinasi Tur, Sabahattin Acar, Mehmet Selim Kurbanoğlu, Mesut Beştaş and Vedat Erten;
3. Holds, unanimously, that there has been a violation of Article 5 § 1 of the Convention in the case of each of the applicants;
4. Holds, unanimously, that there has been a violation of Article 8 of the Convention in the case of the applicants Tahir Elçi, Şinasi Tur, Sabahattin Acar, Niyazi Çem and Mehmet Selim Kurbanoğlu;
5. Holds, unanimously, that it is not necessary to examine separately the applicants' complaints under Article 1 of Protocol No. 1;
6. Holds, unanimously, that there has been no violation of former Article 25 of the Convention;
7. Holds, by 6 votes to 1,
(a) that the respondent State is to pay within three months from the date on which the judgment becomes final, according to Article 44 § 2 of the Convention,
(i) to Tahir Elçi, EUR 1,510 (one thousand five hundred and ten euros) in respect of pecuniary damage and EUR 25,500 (twenty five thousand five hundred euros) for non-pecuniary damage;
(ii) to Nevzat Kaya, EUR 1,660 (one thousand six hundred and sixty euros) in respect of pecuniary damage and EUR 6,600 (six thousand six hundred euros) for non-pecuniary damage;
(iii) to Şinasi Tur, EUR 1,750 (one thousand seven hundred and fifty euros) in respect of pecuniary damage and EUR 15,000 (fifteen thousand euros) for non-pecuniary damage;
(iv) to Sabahattin Acar, EUR 1,750 (one thousand seven hundred and fifty euros) in respect of pecuniary damage and EUR 15,000 (fifteen thousand euros) for non-pecuniary damage;
(v) to Niyazi Çem, 1,510 (one thousand five hundred and ten euros) in respect of pecuniary damage and EUR 25,500 (twenty five thousand five hundred euros) for non-pecuniary damage;
(vi) to Mehmet Selim Kurbanoğlu, 1,600 (one thousand six hundred euros) in respect of pecuniary damage and EUR 12,000 (twelve thousand euros) for non-pecuniary damage;
(vii) to Meral Daniş Beştaş, EUR 1,720 (one thousand seven hundred and twenty euros) in respect of pecuniary damage and EUR 36,000 (thirty six thousand euros) for non-pecuniary damage;
(viii) to Mesut Beştaş, EUR 1,720 (one thousand seven hundred and twenty euros) in respect of pecuniary damage and EUR 14,400 (fourteen thousand four hundred euros) for non-pecuniary damage;
(ix) to Vedat Erten, EUR 1,510 (one thousand five hundred and ten euros) in respect of pecuniary damage and EUR 10,200 (ten thousand two hundred euros) for non-pecuniary damage;
(x) to Baki Demırhan, EUR 1,720 (one thousand seven hundred and twenty euros) in respect of pecuniary damage and EUR 7,200 (seven thousand two hundred euros) for non-pecuniary damage;
(xi) to Arif Altinkalem, EUR 1,720 (one thousand seven hundred and twenty euros) in respect of pecuniary damage and EUR 8,500 (eight thousand five hundred euros) for non-pecuniary damage;
(xii) to Gazanfer Abbasioğlu, EUR 1,300 (one thousand three hundred euros) in respect of pecuniary damage and EUR 3,000 (three thousand euros) for non-pecuniary damage;
(xiii) to Fuat Hayri Demır, EUR 1,210 (one thousand two hundred and ten euros) in respect of pecuniary damage and EUR 2,100 (two thousand one hundred euros) for non-pecuniary damage;
(xiv) to Hüsniye Ölmez, EUR 1,720 (one thousand seven hundred and twenty euros) in respect of pecuniary damage and EUR 36,000 (thirty six thousand euros) for non-pecuniary damage;
(xv) to İmam Şahin, EUR 1,420 (one thousand four hundred and twenty euros) in respect of pecuniary damage and EUR 4,200 (four thousand two hundred euros) for non-pecuniary damage; and
(xvi) to Arzu Şahin, EUR 1,420 (one thousand four hundred and twenty euros) in respect of pecuniary damage and EUR 4,200 (four thousand two hundred euros) for non-pecuniary damage;
(b) that the respondent State is to pay within the same three month period, EUR 46,240 (forty six thousand two hundred and forty euros) in respect of costs and expenses;
(c) that to the above amounts under (a) and (b), is to be added the payment of any tax that may be chargeable;
(d) that all the above sums under (a), (b) and (c) are to be converted into pounds sterling at the rate applicable at the date of settlement, and paid into the bank account indicated in the applicants' just satisfaction claim;
(e) that from the expiry of the aforementioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
8. Dismisses, unanimously, the remainder of the applicants' claim for just satisfaction.
Done in English, and notified in writing on 13 November 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Michael O'BoyleNicolas Bratza
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
(a) the partly concurring opinion of Sir Nicolas Bratza; and
(b) the partly dissenting opinion of Mr Gölcüklü
PARTLY CONCURRING OPINION OF JUDGE
SIR NICOLAS BRATZA
I am in full agreement with the conclusion and reasoning of the Court on all points, save that I would have preferred that the complaint relating to the failure of the judicial authorities to investigate the applicants' allegations of ill-treatment had been examined by the Court under Article 13 of the Convention rather than under the so-called “procedural aspect” of Article 3.
In holding that, where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the State, that provision, read in conjunction with the State's general duty under Article 1 of the Convention “to secure ... the rights and freedoms” defined therein, requires by implication that there should be an effective official investigation, the Court has relied on its Assenov and Others v. Bulgaria judgment of 28 September 1998 (Reports 1998-VII, p.3290 § 102). The Court there observed that, if it were not the case that Article 3 embodied such a procedural aspect, the general legal prohibition of torture and inhuman and degrading treatment and punishment, despite its fundamental importance, would be ineffective in practice and that it would be possible for agents of the State to abuse the rights of those within their control with virtual impunity.
However, the Assenov and Others case was decided before the judgment of the Grand Chamber of the Court in Ilhan v. Turkey [GC], no.22277/93, ECHR 2000-VII, p.267, in which the Court voiced certain doubts as to the analogy drawn in the earlier authority between the provisions of Article 2 and those of Article 3. The Court pointed out that, while the obligation to provide an effective investigation into the deaths caused by, inter alios, the security forces had been held to be implied into Article 2 in order to ensure that the rights guaranteed by that Article were not theoretical or illusory but practical and effective, the provisions of Article 2 included the requirement that the right to life be “protected by law”. In addition, the Court noted, Article 2 may also concern situations where the initiative must rest on the State for the practical reason that the victim is deceased and the circumstances of the death may be largely confined within the knowledge of State officials (p. 295, § 91). The Court continued:
“92. Article 3, however, is phrased in substantive terms. Furthermore, although the victim of an alleged breach of this provision may be in a vulnerable position, the practical exigencies of the situation will often differ from cases of use of lethal force or suspicious deaths. The Court considers that the requirement under Article 13 of the Convention that a person with an arguable claim of a violation of Article 3 be provided with an effective remedy will generally provide both redress to the applicant and the necessary procedural safeguards against abuses by State officials. The Court's case-law establishes that the notion of effective remedy in this context includes the duty to carry out a thorough and effective investigation capable of leading to the identification and punishment of those responsible for any ill-treatment and permitting effective access for the complainant to the investigatory procedure (see the Aksoy judgment ...). Whether it is appropriate or necessary to find a procedural breach of Article 3 will therefore depend on the circumstances of the particular case.”
In the Ilhan case itself, the Court found that the applicant had suffered torture at the hands of the security forces and that his complaints concerning the lack of any effective investigation by the authorities into the causes of his injuries fell to be dealt with under Article 13, rather than Article 3, of the Convention.
I consider that similar reasoning applies in the circumstances of the present cases, where the Court has likewise found a substantive violation of the Article 3 rights of nine of the applicants, and that the applicants' complaints concerning the lack of an effective official investigation into their allegations of ill-treatment would have been more appropriately examined under Article 13 of the Convention.
Since, however, Article 13 was not expressly invoked by the applicants and since I fully share the view of the Court not only that the complaints of the applicants gave rise to an arguable claim of ill-treatment which required to be investigated, but that there was a total failure of the judicial authorities to carry out any such investigation, I have joined in the finding of a violation of Article 3 of the Convention in this regard.
PARTLY DISSENTING OPINION OF JUDGE GÖLCÜKLÜ
To my great regret, I cannot share the opinion of the majority of the Court in the present case in respect of the application of Articles 3 and 41 of the Convention.
Let me explain:
1. The majority found a violation of Article 3 of the Convention in both its substantive and procedural aspects, which conclusion I cannot accept. There is no evidence in the case file to substantiate the applicants' complaints of torture or other ill-treatment, apart from their declarations, which are only those that anyone taken into custody puts forward either at the time or in preparation of his / her defence once released. In similar cases which have already been tried, one finds the same descriptions of acts “characterised” as torture or ill-treatment; it is not surprising, therefore, that the applicants in the present case repeat such allegations one after the other in the form of this well known cliché. However, the majority find such allegations “credible and consistent” and that the claims were “credible as a whole” (paragraphs 639-641 above) – vague terminology when there is not the slightest element of material proof to substantiate it; as if the mere repetition by 10 to 15 people of an agreed text could be deemed “credible and consistent”! A number of untruths repeated and embellished one after the other do not constitute a real truth. In sum, the reasoning of the majority, on which their finding of a violation is based, is nothing more, in my opinion, than supposition, speculation and misplaced deduction. This is why, I think, they had to look for support in “international materials” (paragraph 596 above), which are irrelevant when one examines an allegation of torture, complaint or material fact, where one must prove with certainty that the events did actually occur. The fact that ill-treatment of detainees in Turkey had been found by certain institutions is not a convincing argument on which to rely in the present case.
2. The respondent Government are criticised for failing to provide proof in rebuttal of the applicants' allegations. However, it is difficult to understand how one can disprove a negative fact, or a fact which never occurred.
3. The respondent Government are also criticised for the inactivity of the domestic judicial authorities regarding the applicants' allegations, but from the outset I have endeavoured to explain that the applicants presented no prima facie evidence in support of their complaints. How can one initiate an inquiry or a prosecution when no such evidence is disclosed by the complainants in order to set in motion the judicial apparatus?
4. Moreover, I would emphasise that in the Convention system the finding of a violation, or no violation, has no pejorative implications for the High Contracting Party. The Convention organs cannot adopt the cause of one or the other party to the case. Judicial decisions must be devoid of value judgments, which are always subjective and “emotional”, particularly such tendentious characterisations as “severe pain and suffering ... particularly serious and cruel” (paragraph 646 above). This is especially so when no evidence whatsoever is provided in support of the allegations in question.
5. Finally, I do not agree with the majority in their application of Article 41 of the Convention. First, the award of material damages in the majority of cases is hazardous and speculative. Unless based on verifiable facts and figures, claims for loss of salary or other losses sustained are mere suppositions. This is why the old Court rejected claims under this head unless they could be accurately assessed, as in the case of the destruction of property. Secondly, the sums awarded under this head, together with those awarded as moral damages are clearly excessive. As I disagree with the majority's conclusions under Article 3 of the Convention, it would be appropriate to considerably reduce the assessment of the losses allegedly sustained.
 20 November 1993 according to the applicant and custody records (cf. paragraph 495 below)
 the National Liberation Front of Kurdistan - the political wing of the PKK
 The Government stated that this was the date of detention/remand after appearing before a judge.
 The Government stated that this was date of the decision of detention / remand in absentia
 20 November 1993 according to the applicant and the custody records (cf. paragraph 495 above)
 See also Akkoç v. Turkey, judgment of 10 October 2000, nos. 22947/93 and 22948/93, §§ 37-40, ECHR 2000-X.
 For Mr Elçi see paragraphs 16, 31, 35, 47-48, 60, 93, 95, 97, 101, 129, 141, 153, 166, 177, 196-197, 228, 254, 261, 505-506, 510, 521 and 538 above; for Mr Çem see paragraphs 16, 31, 35, 47-48, 60, 97, 129, 141, 153, 165, 177, 196-197, 228, 254, 261, 505-506, 510, 521 and 538 above; for Mrs Beştaş see paragraphs 31, 35, 47, 53-54, 60, 129, 141, 153, 166, 191, 194, 228, 254, 261, 505-506, 510, 514, 521 and 539 above; for Ms Ölmez see paragraphs 31, 47, 60, 69, 96, 141, 153, 166, 197, 228, 254, 505-506, 521, 530 and 539 above.
 For the conditions of detention, including blindfolding, see paragraphs 17, 21-22, 30, 35, 38-40, 46, 50, 51, 53, 55, 57-59, 61, 65, 67-69, 88, 96, 99, 109, 119, 126, 130, 139-140, 142, 148-150, 154, 164, 170-171, 176, 179, 190-191, 195, 198, 206, 209-210, 212, 223-226-228, 239, 244, 252, 254, 258, 313, 333, 507 and 538; for Mr Tur see paragraphs 35, 139-140, 505 and 538 above; for Mr Acar see paragraphs 39, 148-149, 505, 521-522 and 538-539 above; for Mr Kurbanoğlu see paragraphs 51, 176, 181, 520, 538-540 above; for Mr Beştaş see paragraphs 58, 208, and 538-539 above; and for Mr Erten see paragraphs 60, 223, 225, 227-230, 234, 506, 519, 538-539 and 541 above.